During this time of uncertainty, we wanted to let you know that we are doing all we can to make it possible for you to find peace of mind by finishing your Estate Planning. Most of the process can be done by phone or video conference, but obviously, the actual signing of the documents is more complicated. At this time, we are offering five different options for you to sign your Estate Planning documents; so whatever your situation, we would like to help you find a way to take care of this important task.
In Ontario, there is a requirement for your Will and Power of Attorney documents to be signed in front of two (2) witnesses; this poses real challenges during this time of physical distancing and self-isolation. These requirements are outlined below.
Legal Requirements
Ontario’s Succession Law Reform Act states that a Will must be signed in the presence of two (2) witnesses. Each witness must meet the following criteria:
a) Must be at least 18 years of age;
b) Cannot be a beneficiary named in your Will;
c) Cannot be the spouse of a beneficiary named in your Will.
Ontario’s Substitute Decisions Act states that a Power of Attorney for Property (finances) and for Personal Care (health) must also be signed in the presence of two (2) witnesses. Each witness must meet the following criteria:
a) Must be at least 18 years of age;
b) Must not be your spouse; c) Must not be your child;
d) Must not be the person you are appointing as your Power of Attorney;
e) Must not be the spouse of the person you are appointing as your Power of
Attorney.
Temporary Use of Witnessing by Video Conference
On April 7, 2020, the Government of Ontario issued an Emergency Order in Council permitting the witnessing of Wills and Powers of Attorney by video conference during the state of emergency arising from COVID-19. As a result of this Emergency Order, it is now possible for the witnessing requirement to be met using real-time video conferencing, provided that at least one (1) of the witnesses is a lawyer or paralegal licensed in Ontario.
A further Emergency Order in Council was issued on April 23, 2020, stating that Wills and Powers of Attorney can be signed in counterparts. This means that duplicate documents can be printed so that there is a separate copy for signing by each person and all of the signed copies together make up the original.
WHAT ARE YOUR OPTIONS FOR SIGNING YOUR DOCUMENTS?
During the COVID-19 pandemic, the following options are available to you to ensure that you have a legally valid Will and Powers of Attorney:
Option 1: In-Office Sign-Up
For those who can leave their homes safely and in accordance with public health guidelines, this is the best option to ensure that you create a Will and/or Powers of Attorney that are legally valid.
We will oversee the formal execution of these documents and will provide the appropriate witnesses. We have implemented a set of standard protocols for in-office sign-up appointments to make these appointments as safe as possible for everyone involved. These include having a dedicated room for the signings and maintaining physical distance within this room, as well as cleaning before and after each appointment. The full set of protocols will be communicated to you in advance of your appointment should you choose this option.
Option 2: At Home Sign-Up
If you have a porch or driveway where we can meet outside, or we are able to see you through a door or window, while we stand outside, this option is available. For those who cannot leave their homes or choose not to leave their homes in accordance with public health guidelines, this is the next best option.
We will come to your home with the appropriate witnesses. We will leave the documents that require your signature at your front door and then step away to a safe distance. You will then open your door and retrieve the documents. If it is appropriate, you can remain outside at a safe distance from us and we will guide you through the signing of the documents. If it is more appropriate for you to return inside your home, we will then connect with you by telephone to explain how and where to sign the documents.
When you sign the documents, you will either stand in front of a window or just inside your door with the door open, where we can watch you sign the documents. When you are finished signing, you will leave your documents just outside your door. Once you have gone back inside, we will retrieve the documents and ensure they are properly witnessed. We will leave any documents you will be retaining at your front door for you.
Option 3: Video Conference Sign-Up
If the first two (2) options are simply not available to you, a video conference Sign-Up is a good option.
For this option, you will need a good internet connection and access to a computer, laptop, or other device with a webcam and microphone. We will set up the videoconference for you so no additional software is required.
We will schedule a video conference with you and two (2) witnesses at our office. One witness will be a lawyer. The documents for signing will either be delivered to you by courier ahead of the video conference or will be provided to you in digital form so you can print them yourself.
We will request your consent to record the videoconference. This method of witnessing is unprecedented in Ontario and is an emergency measure. A strong evidentiary record is prudent in these circumstances.
Once the video conference begins you will be asked to formally identify yourself and provide ID to the camera. You will then go through the process of signing the documents. We will have identical copies of all the documents in our office and we will identify ourselves and sign the documents. Once all the documents have been signed you will then place all your signed documents in an envelope, seal it and we will arrange for your documents to be picked up by courier and delivered to our office.
Then, once your signed documents arrive at our office they will be put together with the signed documents in our office to form a legally valid Will and Powers of Attorney in counterpart. We will then courier back to you a set of documents.
Due to the courier costs involved, an additional charge of approximately $50 will apply to cover that expense.
Option 4: Self-Guided Sign-Up
If you are unable to leave your home safely and circumstances do not allow for an At Home or Video Conference Sign-Up, and you are able to find two (2) appropriate witnesses, this option is available.
For this option, you need two (2) witnesses who meet the legal criteria as set out above. We will provide you with the unsigned version of your documents along with a detailed set of instructions that, if followed correctly, will ensure you have a legally valid Will and Powers of Attorney.
However, please note that after a death, if it is necessary to obtain a Certificate of Appointment (Probate), an additional document called an “Affidavit of Execution” is required to be submitted along with the Will. This is an affidavit attesting to the authenticity of the Will and is sworn by one of the witnesses in front of a commissioner of oaths. It is possible that the authenticity of the Will can be established through other means but the Affidavit of Execution is by far the preferred approach. Unlike the options set out above, with the Self-Guided Sign-Up option we cannot complete this Affidavit of Execution at the same time that the Will is signed. So, while you will still have a legally valid Will, we strongly recommend that should you need to use this option, then as soon as you are able, you attend our office and we will resign the documents and add the proper Affidavit to them. It is also helpful for you to know that the Affidavit can be completed after someone dies, provided the witness can be located.
Option 5: Handwritten Will
If none of the other options are available to you, the option of last resort is a handwritten Will; known as a Holographic Will. A Holographic Will is valid in Ontario if it is written out entirely in your own handwriting. No witnesses are required and, in fact, having anyone witness a handwritten Will would invalidate it because it is no longer entirely in your own handwriting.
If this is your only option, we urge you to do this as a temporary solution.
A Holographic Will is best used when it is not possible to create a comprehensive Will with the assistance of a legal professional. Their use originated in emergency situations, such as when someone is trapped and near death. It is best understood as a bare-bones legal tool that can adequately determine who gets your property after your death and name the person who is responsible for the administration of your estate (your executor). Beyond that, its functionality is extremely limited.
We will provide you with the exact wording you should use for your Holographic Will along with a detailed set of instructions that, if followed correctly, will ensure you have a legally valid Will.
There is currently no option for creating a legally valid Power of Attorney without witnesses.
Next Steps
Please consider the above options carefully and decide which one is the best fit for you.
Once you have made your choice, let us know and we will take the estate planning process from there.
