COVID-19 – SIGNING OF WILLS AND POWERS OF ATTORNEY

Hopefully readers of this blog years from now will read this document and chuckle in amazement looking upon the subject matter as being a historical anomaly. 

However as this blog is drafted, we are in the middle of a global pandemic COVID-19 that I shall simply refer to as the plague. 

The plague has caused one and all to self-isolate around the world and has caused thousands of deaths.  There are a few of us who cannot recite the names of relatives or friends that have been taken far too early from us as victims of COVID-19. 

The plague has impacted the practice of Will and Powers of Attorney signing and the Government authorities have shown an uncharacteristic rapid flexibility in dealing with practical problems arising from the effect of the plague. 

The Provincial Government has allowed under very strict guidelines virtual signing of wills pursuant to a Provincial order in counsel, 518-2020 Ontario Regulation 50-20, pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act and extended pursuant to section 7.0.7 of the Act.  In essence, during the duration of the declared emergency, the interpretation of the presence of the testator and witness as being present, under the Succession Law Reform Act (the Act that sets out the formalities for signing of a Will and Power of Attorney) permits that the requirement that witnesses be present for the execution of a Power of Attorney and Will may be satisfied by means of audio, visual communication technology provided that at least one person who is acting as a witness is a lawyer within the meaning of the Law Society Act. 

Audio, visual communication technology means any electronic method of communication in which the participants are able to see, hear and communicate with each other in real time. 

In other words, the myriad of social media apps such as WhatsApp’s, Facetime and Zoom are valid work arounds over the problem of Will and Power of Attorney signings during this crisis. 

Remember that “Testator” means the person making the will and giving instructions on what is to happen to their assets upon their death.  Testator and Will Maker are synonyms.

The specific process which we will outline below in greater detail is more laborious and time consuming, but it is an acceptable methodology of dealing with this plague induced crises.  This assumes that the lawyer/witness and witness #2 are physically together (Code for my ever helpful wife is beside me. The steps to follow are as follows:

1. Our office will forward onto you in advance copies of the Wills and Powers of Attorney for you to review and confirm that they accurately reflects your instructions. 
2. By teleconference, you will have a discussion with the drafting lawyer confirming that you understand the terms of the Will and Powers of Attorney and answering questions that you may have.
3. Our office will email onto you a final version of the Will and Powers of Attorney for signing. 
4. The clients/testator shall print out at least one copy of the Will and two copies of the Powers of Attorney. 
5. The client will have forwarded by email onto our office by way of scanning or photograph photographic identification such as a Driver’s Licence.
6. When the parties are ready to sign a video conference shall take place.  All testators must be visible and audible and be part of the video conference.  From our offices’ perspective, the two witnesses, one of whom must be a lawyer will be physically with each other and will participate in the video conference. 
7. Each of the parties will confirm that they can see and hear one another, that the sound and video are on and transmitting. 
8. Each of the testators shall identify themselves by holding up a piece of ID to the camera so that the parties can be identified. 
9. No one else may be present with the Testator/Will maker who may be a beneficiary or who may be influencing the Will maker.  In other words, the testators and grantors of the Powers of Attorney must not have any other family members or friends present.   The obvious exception is a married couple who are making each other their primary sole beneficiary.
10. The Will maker will follow the following process:
• Hold up the first page of the Will to the camera. 
• The two witnesses will confirm that they see the first page.
• The Will maker will place their initials on the bottom right corner of each page.
• The Will make will hold up the first page to the camera to show those initials. 
• Each of the two witnesses will confirm that they see the initials. 
• Repeat the process for each page until the last page.
• On the last page, insert the date of signature where indicated. 
• If not already inserted, place your initials next to the date if handwritten. 
• The Will maker shall each sign with the regular signature on the last page when indicated.
• The Will maker will hold up the last page to the camera to confirm and identify their signature. 
• Each of the two witnesses shall confirm that they see the signatures. 
• Rinse and repeat for the Powers of Attorney, no need to initial pages, just the signature on the last page at the appropriate location.
11. The Will maker will arrange to deliver to the lawyer the signed Will and Powers of Attorney by courier.  The lawyer will tell you where to have the document delivered.
12. When the lawyer receives the Will and Powers of Attorney the lawyer along with the second witness shall be present and a second video conference shall be held. 
13. At the second video conference, all of the participants in the first video conference shall be present, and the following will take place: 
• All the parties shall confirm that they can see and hear one another and that the sound and video are on and transmitting and each participant shall identify themselves. 
• The first witness who is not the lawyer shall hold up the first page of the will to the camera.
• Have the Will maker and the lawyer confirm that they see the first page. 
• The witness number two shall place their initials in the bottom right corner of each page. 
• Hold up the first page to the camera to show those initials.
• Have the Will maker and lawyer confirm that they see the initials of the first witness. 
• Repeat the process for each page until the last page. 
• The non-lawyer witness shall place their initials next to the date if handwritten. 
• The second witness shall insert the date of signing of the witness signature beside their witness line. 
• The second witness shall sign with a regular signature on the last page where indicated.
• Witness number two shall hold up the last page to the camera to show the signature. 
• Have the Will maker and the lawyer confirm that they can see the last page of the witness number one. 
• The lawyer shall then repeat the same instructions with respect to the non-lawyer witness.
• Repeat the entire process for the Powers of Attorney however no witnessing of pages, only the signature page.
• All parties shall be present throughout both of the video conferences.
14. The lawyer shall then prepare an Affidavit of Execution of the will.
15. The Will and Powers of Attorney shall be stored in accordance with the instructions of the client. 

This is a far more laborious process, but it is the best that can be done at this stage.  Failure to following these steps may make the Will invalid and it is important that all concerned pay careful attention to that which is required under these new emergency rules and regulations. 

As hopefully as is obvious from the laborious instructions, this is far more time consuming and as a result, there is a token $250.00 additional charge plus a courier fee.  As always, our clients have the option to simply defer until the passing of the plague and to simply sign the Will and Powers of Attorney in the presence of a lawyer and witness at our office.