Wills and Powers of Attorney in the Digital AgeBy Kormans LLP
In March of 2020 when the World Health Organization declared a global pandemic, individuals became more cognizant of preparing for their futures. One form of preparation increasing in popularity was the drafting of Wills, outlining Testator’s intentions for their future estate(s).
With many Ontarians relying on their lawyers for the proper execution of their Wills and other planning documents, challenges quickly began to surface. At the time, much of Ontario was under a ‘Stay at Home’ order, preventing Testators from visiting their lawyers in person. Additionally, the rules for executing a valid Will at the time, subject to limited exceptions under the Succession Law Reform Act, mandated the signatures of two independent adult witnesses in the physical presence of the Will document.
As a practical solution to overcome this hurdle, the province relied on section 7.0.1 of the Emergency Management and Civil Protection Act (“Act”). The Act allowed the province to issue several temporary emergency orders to protect the health and safety of Ontarians. One of these emergency orders was O. Reg. 129/20, permitting the virtual witnessing of Wills and Powers of Attorney, provided the following conditions were met: 1. The Testator executing their Will and both witnesses must be able to see, hear and interact with each other in real-time by way of “audio-visual communication technology” and 2. One of the witnesses is a licensee of the Law Society of Ontario.
Perhaps one of the few certainties during the pandemic was the rapid increase in global digitalization. With this in mind, although the Emergency Order was meant to be temporary, the passing of Bill 245, Accelerating Access to Justice Act, 2021, permitted the virtual signing of Wills and Powers of Attorney to become a permanent option in Ontario.
Today, Testators can have their Will drafted from the comfort and safety of their own home.
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