Making Wills and Powers of Attorney While Social-Distancing in the COVID-19 Pandemic

Nozomi (Zoe) Smith Lawyer, Pallett Valo LLP

In the midst of the COVID-19 pandemic, we realize more than ever the importance of having our proper documents in place to prepare for your “what-ifs”. Those documents are (i) Will, (ii) Continuing Power of Attorney for Property, and (iii) Power of Attorney for Personal Care. At the same time, while we are all practicing social-distancing, it may not be possible to sign your estate planning documents in the physical presence of two witnesses. In response to this challenge, as of April 7, 2020, the Ontario Government issued the Emergency Order allowing Ontarians to execute their Wills and Powers of Attorney in the virtual presence of witnesses by video conferencing during the COVID-19 pandemic.

Virtual Execution of Wills and Powers of Attorney

Normally, to make a valid Will and Powers of Attorney, you must sign your documents in the physical presence of two witnesses. However, since family members cannot be a witness to your estate planning documents in most cases, you may be unable to arrange two independent witnesses while social-distancing.

The Emergency Order now allows us to execute their Wills and Powers of Attorney in the virtual presence of witnesses by video conferencing such as Zoom or Skype. However, virtual witnessing is only allowed during the duration of the COVID-19 state of emergency. Further, one of the witnesses must be a lawyer or certain paralegals licensed to practice by the Law Society of Ontario. All signatures in the documents must be original (wet) signatures on paper and a digital copy or e-signature is not valid.

Making Your Own Will and Powers of Attorney

DYI Kit: If you want to make your Will and Powers of Attorney by yourself without a lawyer’s help, you may find “Do-It-Yourself” kit available online or at a bookstore useful. If you execute your DYI Will or Powers of Attorney, please read the instructions about witnesses carefully, arrange two witnesses, and sign your documents in an open space such as your backyard or porch while keeping the physical distance from your witnesses. Also, please keep the contact information of your witnesses. This is because if your Will needs to be submitted to the court for probate proceeding, which is a court proceeding to prove and certify your last Will, an affidavit of execution sworn by one of the witnesses will be required.

Holograph Wills: In Ontario, you are permitted to make a holograph Will. Since witnesses are not required, making a holograph Will can be another option during social-distancing. To make a valid holograph Will, you must handwrite every single word of the entire Will and sign at the end of the Will. If you make a holograph Will, please remember to name your Executor as well as your beneficiaries and date the Will. Please note that our law does not allow us to make holograph Powers of Attorney.

Understanding Risks of DYI Documents

If you prepare your own Will and Powers of Attorney which are compliant with certain rules of execution and formality, those documents can be legally valid. However, such DYI documents are prone to disputes over the validity or interpretation of the documents, and as a result, your wishes may not be carried out. Please prepare your documents at your own risk if you do not seek any professional help. **Please note that the information herein is as of May 13, 2020, and intended for the general information and not as legal advice or opinion to any particular circumstances from the writer. Please seek professional advice on your specific situations.

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