Throughout the COVID-19 pandemic, Ontario’s estate planning rules and regulations concerning the signing and witnessing of wills and powers of attorney have evolved and transformed to meet social distancing needs as well as lockdown measures. With the recent passing of Bill 245, the Accelerating Access to Justice Act, certain pandemic-specific amendments, such as e-witnessing of wills, are now mainstays in Ontario law.
COVID-19 and Virtual Witnessing of Wills
Following Ontario’s state of emergency, declared in March 2020, the provincial government passed Regulation O. Reg. 129/20 (Regulation) in April 2020, under the Emergency Management and Civil Protection Act. The Regulation, which sets out the rules for e-witnessing, were to remain in effect “for the duration of the declared emergency.”
The Regulation, along with Bill 245, defines the new parameters for the signing and witnessing of wills and powers of attorney. Bill 245 proposes that the new measures allowing the virtual witnessing of wills and powers of attorney will persist on a permanent basis within Ontario post-pandemic. The Bill received Royal Assent on April 19, 2021.
The new estate planning rules are a step forward, dramatically modernizing the process of signing and witnessing of wills created on and after April 7, 2020. In recognition of the advancements in technology over the past 5 to 10 years, the witnessing of wills and powers of attorneys can take place electronically, by means of “audio-visual communication technology.”
Importantly, the Bill defines “audio-visual technology” as “any electronic method of communication in which participants are able to see, hear and communicate with one another in real-time.” Given this broad definition, Zoom and other audio-visual means of communication, such as Skype, FaceTime, and Microsoft Teams, are likely included in the amendments. The visual component provides additional security by allowing the parties to verify the identity before the documents are signed.
Estate Planning Rules Concerning Witnessing Under Bill 245
These reforms nonetheless require that certain protocols be followed to ensure the process is carried out securely. For example, at least one person acting as a witness be a licensee within the meaning of the Law Society Act at the time of the will signing. Bill 245 additionally requires that the making or acknowledgment of the signature and the subscribing of the will be contemporaneous. Therefore, when a testator signs a will, the subscribing witnesses must be present, physically or virtually via acceptable audio-visual communication methods.
Another important amendment provides that when a will is virtually signed or subscribed, the signature or subscription may be made by signing or subscribing complete, identical copies of the will in counterpart. These copies are deemed identical even if there are minor, non-substantive differences in format or layout between the copies.
E-Witnessing of Powers of Attorney
Bill 245 also offers significant changes, which broadly mirror amendments made concerning wills, regarding powers of attorney. Specifically, like wills, powers of attorney can now be witnessed and executed virtually. However, again, at least one person acting as a witness must be a licensee within the meaning of the Law Society Act at the time of the execution. Furthermore, the same rules regarding contemporaneity and executing copies applicable to e-witnessing and signing of wills apply to powers of attorney.
Guidelines for Virtual Commissioning
A key provincial legislation governing commissioning, including remote commissioning, is the Commissioners for Taking Affidavits Act. Section 9(1) of the Act requires that oaths and declarations are to be taken by the deponent (i.e. the client) in the physical presence of the commissioner or any other person administering the oath or declaration. Of course, subsequent to COVID-19 amendments, remote commissioning has become a possibility. Where virtual commissioning is the chosen method, s. 9(2) authorizes the Commissioner to administer the oath or declaration remotely, where certain rules are followed, namely those specified in section 1 of O. Reg. 431/20.
Among the five requirements provided in the Regulation, it is essential that the commissioning takes place in real-time, and with the ability to see, hear, and communicate throughout. Of note, these are all necessary to fulfill the requirements for contemporaneity and those concerning “audio-visual technology” in signing wills and powers of attorney virtually. It is also important that Commissioners have the ability to confirm the identity of clients and vice-versa. This reduces the risk of fraud and identity theft. Commissioners are further obligated to ensure the client understands the process and what is taking place, including the document(s) being signed. This means that reasonable precautions must be taken in the execution of the client’s duties, with respect to a will or power of attorney.
Contact Experienced Ottawa and Eastern Ontario Estate Lawyers at Tierney Stauffer LLP
At Tierney Stauffer LLP, our experienced lawyers are committed to helping you navigate the complexities of the estate planning process. Our offices in Ottawa, Cornwall, Kingston and Arnprior serve clients in all aspects of estate planning and estate administration. We prepare wills, powers of attorney and administer trusts for our clients. If you are considering writing a will or planning your estate, setting up a trust, or find yourself in a dispute over an estate, we can help.
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