The Importance of Having A Will

We recently wrote about changes in Ontario to accommodate social-distancing while still be able to carry out the signing of wills and powers of attorney, but here I wanted to expand on the process for signing a will virtually. With the emergency orders during the COVID-19 pandemic, courts have ceased to have in-person hearings. But life goes on. People get married, get divorced, die, buy and sell houses, have to watch for fraudsters. We all try to lead lives as normally as we can but many have lost their jobs and do not know when and if they will return to work. If they return, work may be very different than before. Life will not return to the way it was before. People are afraid to have close personal contact especially those that are considered most vulnerable, those with medical conditions, those who are older.

With the tragic death of friends and acquaintances, many people have reflected on the wisdom of making a will so if something does happen to them, regardless of their age, their wishes are carried out.

The Online Shift

Until recently, Ontario law required that wills be witnessed personally by two independent witnesses who had to be present in the room with the testator at the same time and everyone had to see everyone else sign. In the days of social-distancing, this is difficult. This is even more difficult when the testator wishes to have a lawyer explain the will and act as a witness. Very early after the emergency orders were proclaimed in Ontario, Attorney General Doug Downey announced changes to the Wills Act and other statutes to ensure that wills signed virtually would be recognized by the courts. A will can be witnessed online, that is through a computer or smartphone under certain conditions.

The witnesses must be able to see the testator sign. The witnesses then sign and the testator must see them sign. They both sign identical documents which will later be combined to make one will. One of the witnesses must be a licensee of the Law Society of Ontario, i.e. a lawyer or a paralegal.

The lawyer is concerned with the same issues as when the will is signed in the old way by all persons present in the same place. The lawyer must ensure that the testator understands what she or he is signing. He or she has to ensure that the wishes of the testator are expressed clearly and that these, in fact, are the wishes of the testator. The lawyer must also be satisfied that the testator has capacity. It is advisable that the testator be alone in the room when he or she is signing though sometimes a caregiver may be present.

This way of signing a will appears to be much more complicated, but it does permit a person to sign a valid will without leaving home and without someone going there.

The same protocols apply to signing powers of attorney.

Virtual signatures are now also permitted on real estate documents when someone is buying or selling or placing a mortgage, as well as in swearing affidavits.

In one case our 100-year old client residing in a senior’s residence was present with a social worker and our discussion took place over Webex (there are many other platforms such as Zoom, Google Meet). The client was able to make changes in the will without having to leave the residence and without concern that someone that visited him would carry the virus.

Once the pandemic subsides, it is not certain if we will return to the old way of signing documents.