COVID-19 has introduced a new landscape to our lives. How we live has perhaps, changed forever.

How does this affect lawyers and our legal work?

We mentioned electronic signatures for real estate signings in our previous blogs, which noted that electronic signing is possible and a good solution in times of social distancing. This was made possible by the Law Society of Ontario’s statement that while Commissioning affidavits and statutory declarations generally does require a physical presence, video conferencing is permitted and will be interpreted as in the “physical presence”. This is a generous interpretation for trying times and helps us continue to do our part for the economy as an essential service.

However, signing Wills in Ontario have stricter rules.

The law that applies to Wills and Powers of Attorney is the Succession Law Reform Act, which provides that Wills must be in writing and must be signed by the testator in the presence of two or more witnesses who are also present at the same time; “in the presence of the testator” means that the witnesses must actually see the testator sign and the testator must see each of them sign while both are in their presence at the same time. While there can be some leeway with Powers of Attorney, also known as “substantial compliance”, Wills on the other hand require “strict compliance”. In short, the law of Wills in Ontario does not explicitly allow electronic signings;

With the COVID-19 physical distancing requirements in place, having a lawyer physically present is not practical. A creative solution was to provide detailed instructions to clients on how to execute their Wills. Despite the instructions provided, without a lawyer present, execution could have its problems.

Thankfully, on April 7, 2020 an Order was made under s. 7.0.2(4) of the Emergency Management and Civil Protection Act, to temporarily permit virtual execution of Wills and Powers of Attorney through audio-visual communication technology during the COVID-19 emergency.

This is only permitted so long as at least one person who is providing services as a witness at the time of the making, acknowledgment or subscribing the Will is a licensee of the Law Society of Ontario (e.g. a lawyer).

In the Emergency Order, "audio-visual communication technology" means any electronic method of communication in which participants are able to see, hear and communicate with each other in real time." There are many such technologies available that we are making good use of.

While the April 7^th Emergency Order, amending the law on the execution of Wills and Powers of Attorney was welcomed, it was half baked. Practical problems of having to circulate documents and having to potentially hold three video conferences for the completion of the signing by each of the testator and the two witnesses can include the risk of circulating contaminated documents and that intervening events can prevent the completion of the subsequent signings by video conference.

We executed several Wills and Powers of Attorney using this rather ineffective method of making valid documents and we thank our clients for their patience during that lengthy process.

To alleviate some of the issues mentioned above, on April 22, the Attorney General amended the Emergency Order by allowing signatures on complete, identical copies of the Wills and Powers of Attorney in counterpart. Together, the signed documents constitute the Will and Power of Attorney.

Wet signatures and having a lawyer present are still requirements, so those online do it yourself kits become doubly problematic.

These welcomed Emergency Orders allow us to continue to provide essential estate planning services during this difficult time. As estates law continues to evolve, our hope is that these temporary changes get improved upon and become permanent. Online and virtual services are likely here to stay.

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