The world as we knew it has changed in the wake of the Coronavirus (COVID-19) pandemic, and how you sign your wills and powers of attorney during this time is no exception.
Some people may find they have some extra time to consider their estate plan while social distancing. Others may already be in the midst of updating or implementing their initial estate plan and wondering how social distancing impacts their estate planning.
One of the biggest hurdles to overcome in the estate planning process in the current circumstances is how wills and powers of attorney can be properly executed. Ontario has very strict requirements for how wills and powers of attorney must be signed in order to be valid:
- A will must be witnessed by two people. Each witness must be eighteen years or older and must not be a beneficiary under the will or a spouse of a beneficiary.
- A power of attorney must be witnessed by two people. Each witness must be eighteen years or older and must not be an attorney under the power of attorney, a spouse of an attorney, or a spouse, partner, child or dependant of the grantor(the person whose power of attorney it is). Both witnesses must also be fully capable of managing their own affairs.
- When signing both a will or powers of attorney, the testator (person whose will it is) or grantor and the two witnesses must all complete the signing process in one another’s presence (i.e. all three people must stay together during the signing process).
If the above rules set out in the legislation are not strictly adhered to, the will and/or powers of attorney (as the case may be) may be found invalid altogether. While other provinces allow for more flexibility in this regard by recognizing “substantial compliance,” Ontario does not.
Alternative Measures
Typically, people will attend their lawyer’s office to ensure the execution rules are properly satisfied. Most offices (including ours) also ensure that an affidavit of execution is sworn by one of the witnesses immediately following the signing of the will. The affidavit of execution must be sworn in front of a notary or commissioner and it is required by the Court when it comes time to probate the will.
As attending your lawyer’s office is not an option for most in the COVID-19 climate, alternative measures need to be taken to sign wills and powers of attorney at this time. Ultimately, you can sign your wills and powers of attorney at home but must still adhere to the legislative requirements set out above. For some it may be difficult to locate two witnesses that meet the above requirements. Moreover, being able to get an affidavit of execution commissioned or notarized at this time poses additional challenges (although this can be done virtually).
Even if you sign your will and powers of attorney at home for now, you should still attend your lawyer’s office when no longer social distancing so that your lawyer can ensure that the formal requirements discussed above are adhered to and that an affidavit of execution is sworn shortly thereafter.
Wills and Powers of Attorney Can Still Be Prepared and Signed
The bottom line is that your wills and powers of attorney can still be prepared and signed during the COVID-19 pandemic, and that the logistical challenges these circumstances pose should not deter you from moving forward with your estate planning. Unless and until your new will and powers of attorney are properly executed, your prior will and powers of attorney (if you have any) will govern your estate plan and who can make decisions for you in the event of your incapacity.
If you don’t have a will or powers of attorney to begin with then the legislation will govern how your estate is distributed and who can be appointed by the Court to make decisions if you are incapable. No email instructions you sent to your lawyer or others or wishes you may have mentioned to your executor or others will change this. Given our current circumstances it is as important now as it has always been to speak with an estates lawyer about your estate planning, and specifically, how you can give effect to your estate plan during these trying times.
If you need to speak to a lawyer about your will and power of attorney, the estate lawyers at Mills & Mills LLP can assist. To learn more about how we may be able to assist you please reach out to us online or by telephone at (416) 863-0125.
For the other post in this series, see the link below:
Part Two: Virtual Signing
2 St Clair Ave West
