Witnessing Wills and Powers of Attorney in Ontario Amid COVID-19 | Rotfleisch & Samulovitch PC

Witnessing Wills and Powers of Attorney in Ontario During the Covid-19 Pandemic – A Canadian Tax and Estate Lawyer Analysis

Normal Will Witnessing Rules

The Covid-19 pandemic has forced all industries to reevaluate how they do day-to-day business.  Nowhere is this more apparent than the legal field in Ontario, where attempts at modernization have been delayed by certain safeguards that are considered to be of paramount importance.  One such example is the formal requirements for the signing and witnessing of wills or powers of attorney in Ontario.

Under the Succession Law Reform Act and the Substitute Decisions Act, wills or powers of attorney are required to be signed by the testator (or grantor in the case of a power of attorney) in the physical presence of two witnesses.  The general rules for who qualifies as a proper witness is set out in those acts, and in general includes that the witness must be over 18, is not a beneficiary of the will or a spouse of a beneficiary, is not one of the named attorneys or their spouse and is not a child of the person granting the attorney.

The development of these rules through the common law and statute in Ontario is meant to ensure that there is no undue influence exerted on the testator (grantor), and that a person is of sound enough mind to make decisions about the distribution of their estate.  This requirement for physical presence has created a significant issue for those who wish to ensure that their wishes are adhered to given the social distancing rules under the province’s Emergency Order shuttering most “non-essential” businesses.  This could result in many individuals passing away intestate, or becoming incapacitated with no one to take control of their affairs without first engaging in the time and cost consuming application to the Ontario Superior Court.  In order to combat this problem, the Ontario Legislature recently released an emergency order to allow for flexibility in the creation and signing of wills and powers of attorney.

The Ontario Virtual Witnessing Emergency Order

In order to ensure that citizens are able to continue to sort out their affairs and see their wishes done in the event of incapacity or death, on April 7, 2020 the Province of Ontario issued an Order under regulation 129/20 of the Emergency Management and Civil Protection Act with a short title of “Signatures in Wills and Powers of Attorney”.  The Order was initially slated to take effect from April 7, 2020 until April 21, 2020, but was extended until, at the date of writing, June 30, 2020 at the earliest.

The Order states that the requirement that a will or power of attorney be signed in the presence of two witnesses may “be satisfied by means of audio-visual communication technology” which is defined to mean any electronic method of communication that allows the participants to see, hear and communicate with each other in real time.  In effect, this means that wills may now be witnessed over computer video chat, including applications such as Skype, Zoom, Microsoft Teams and even Apple’s FaceTime or WhatsApp.

Additional Requirement for Virtual Witnessing

In order to ensure that this important step of settling one’s affairs is still subject to some scrutiny, there is an additional requirement under the Order in order to make the virtual witnessing effective.  In order for a will or power of attorney to be perfected by way of virtual witnessing, the Order requires that at least one of the witnesses in the teleconference be a “Licensee” for the purposes of the Law Society Act of Ontario.  This means that in order for a virtually witnessed will to be effective either a lawyer or paralegal must be one of the two witnesses.

In normal times, the lawyer who takes responsibility for the preparation of a client’s will is also required to test and confirm the mental capacity of the client.  This is usually done by way of preliminary meetings to confirm wishes and assets as well as a natural follow-up during the actual execution and witnessing.  To ensure that a testator’s wishes are carried out lawyers must ensure they are satisfied that capacity exists.  The requirement that a witness to a virtual will or power of attorney signing be a licensee buttresses this practice requirement in an attempt to further protect the public.

Although it is not explicitly stated in the Order, the basic requirements for a witness discussed above are clearly also still applicable, so proper legal advice and guidance is still invaluable in that regard.

Toronto Tax and Estate Lawyers can Help

Understanding how the rules of the Succession Law Reform Act and the Substitute Decisions Act operate is difficult and sometimes convoluted.  Anyone who is seeking to have their wishes enforced after they pass-away or otherwise become incapacitated should understand the critical need for obtaining proper legal advice.

At our firm, our experienced Canadian tax lawyers have been planning and drafting wills for decades, and given our unique knowledge of both tax and estate law we are able to provide an all-in solution for those seeking to settle their affairs while saving as much on tax as possible.  Those who do utilize the services of our Canadian tax firm will ensure that they are passing as much of their wealth as possible to the next generation without wasting value on taxes if their estate is not tax optimized.  If you wish to know more about our tax for estates legal services, please contact our Toronto law firm today.

About the Author

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David J. Rotfleisch

David J. Rotfleisch, a leading Canadian tax lawyer, is not only a certified specialist in taxation but also a chartered professional accountant. Most recently, David is a pioneer in Canadian crypto taxation.

As of April 2020, he was one of 12 Ontario Certified Specialists In Taxation™.

Learn more about David J. Rotfleisch