As we continue to live with the realities of COVID-19 and the social distancing measures that have been implemented (and recently reinforced) to reduce its spread, special measures have also had to be taken to continue delivering estate planning services at a time when the issue may be top of mind for many.
These types of services typically require an in-person meeting, as well as the presence of two witnesses, to properly finalize documents and ensure issues of identity, capacity, influence, and confidentiality are adequately dealt with. The Succession Law Reform Act provides that Wills must be in writing and signed by the testator in the presence of two witnesses who are both physically present at the same time. The Substitute Decisions Act provides for substantially the same requirements when preparing Power of Attorney documents for both personal care and property. While there are “substantial compliance” provisions that relax these rules for Power of Attorney documents, there are no similar provisions available for the preparation of Wills.
Work-around options for the Valid Execution of Documents
While they may be limited, there are still a number of options available to ensure that estate planning and testamentary documents can still be validly executed while still observing best practices for slowing the spread of COVID-19. Some options may include:
- Having a client attend at the lawyer’s office to sign documents, and observing all necessary hygiene and social distancing precautions (such as sitting more than 6 feet apart, washing or sanitizing hands, and limiting the meeting to only those necessary to complete the documents.)
- Send documents to the client, who will arrange to have 2 valid witnesses present with them. This may be challenging, and the lawyer may wish to participate in the process remotely by phone or video chat. Alternatively, detailed signing instructions may be provided to the client, with arrangements made to later confirm the proper execution of the documents. This process is not without its complications, however, could be an option under certain circumstances.
- Prepare an emergency holograph Will or Codicil. The Succession Law Reform Act does allow a testator to make a valid Will without the need for witnesses if the document is made wholly in the testator’s own handwriting and the testator signs the document. Note, however, that this is not an option available for the preparation of Power of Attorney documents.
While the valid preparation and execution of Will and Power of Attorney documents are complicated by the need for social distancing efforts, there are still options available to ensure that you can promptly and effectively plan your estate. For more information reach out to one of our experienced Wills and Estate lawyers who can give you advice tailored to your specific needs.