Virtual Witnessing of Wills and Powers of Attorney in Ontario : Canadian Tax Lawyer’s Guidance

Virtual Commissioning in Ontario

Effective August 1, 2020, a regulation was enacted that permits remote commissioning . Ontario legislation O. Reg. 431/20, Administering Oath or Declaration Remotely permits remote commissioning if the conditions set are met.

To engage in remote commissioning, lawyers and paralegals must meet the following conditions:

• The commissioning takes place by an electronic method of communication in which the commissioner and the deponent can see, hear, and communicate with each other in real time throughout the entire transaction.
• The commissioner confirms the identity of the deponent (for example by examination of a copy of the deponent’s driver’s license);
• A modified version of the jurat is used that indicates:
• That Commissioning was administered in accordance with O. Reg. 431/20 under the Commissioner for Taking Affidavits Act; and
• The location of the commissioner and the deponent at the time of commissioning.
• The commissioner must ensure that the deponent understands what is being signed; and
• The commissioner keeps a record of the transaction.

 

Virtual Witnessing of Wills and Powers of Attorney

On April 19, 2021, the Bill 245, Accelerating Access to Justice Act, 2021 received Royal Assent and came into force. Prior to passing of this Bill in Ontario, according to the Succession Law Reform Act, subject to limited exceptions, in order for Wills to be valid, they had to be signed by the testator in the physical presence of two independent adult witnesses. The Substitute Decisions Act, also required that Powers of Attorney be signed by the grantor in the physical presence of two witnesses.

On April 23, 2020, in response to the outbreak of COVID-19, the Ontario government passed an emergency order, O. Reg 129/20, to temporarily permit the virtual witnessing of wills and powers of attorney. Bill 245 amended the Succession Law Reform Act and the Substitute Decision Act retroactively to April 7, 2020, in line with the provisions of the emergency order, permanently allowing for remote witnessing of wills through the means of audio-visual communication technology. Virtual witnessing of Wills and Powers of Attorney is allowed as long as the following requirements are met:

(a) at least one person who acts as a witness is a licensee within the           meaning of the Law Society Act at the time (lawyer or paralegal);    and

(b) the making or acknowledgment of the signature and the    subscribing of the will are contemporaneous;

 

Pro Tax Tips – Effecting the Virtual Witnessing of Wills and/or Powers of Attorney

In order to successfully rely on the provisions of the Succession Law Reform Act, at least one of the two witnesses must be a ‘licensee’ within the meaning of the Law Society Act (a lawyer or paralegal licensed by the Law Society of Ontario). This means that for in-person signing you can sign in physical presence of any two adult independent witnesses, however, for virtual signing you will need one of your witnesses to be a lawyer or a paralegal in Ontario.

In the event that you do not have a current Will or Powers of Attorney, or you need to update the one you have, you should consult with one of our experienced Canadian tax lawyers to plan your will in order to minimize taxes on death.

Frequently asked questions

Can a will or power of attorney be signed electronically in Ontario?

No, while the documents may be witnessed electronically, they may not be electronically signed. In other words, wet signatures are still required on wills and powers of attorney by all parties; e-signatures are not permitted.

My witness printed out his own copy of the original document and this copy has minor differences in format and layout from the original document. Is this permitted?

Yes, minor non-substantive differences in format or layout between the copies (pages may print in a different format or alignment) are permissible. However, all documents must be identical; no alteration in text is permitted.

Can a lawyer or paralegal, who signed as a witness on my Will or Power of Attorney, virtually commission the Affidavit of Execution of Will or Affidavit of Subscribing Witness for a Power of Attorney?

Yes, the lawyer or paralegal that witnessed the signing of your Will or Power of Attorney can commission your Affidavit of Execution of Will or Affidavit of Subscribing Witness for a Power of Attorney virtually,  according to O. Reg. 431/20.