Supporting a Wills and Estates Practice During COVID-19 and Beyond
As a result of COVID-19, lawyers across the country have had to temporarily alter their practices. In a profession where in-person meetings are expected by clients and necessary to see to the proper execution of legal documents, social distancing has forced the legal system to rapidly adapt. Social distancing has posed a challenge for members of the Estates Bar in particular, as client meetings, will signings, hearings, and mediations have all been affected. During this time, however, it remains crucial that estate lawyers continue to help clients in creating or amending estate plans and in moving estate litigation matters forward. Familiarizing ourselves with the tools that have recently become available can be of great assistance during the pandemic and as we continue to develop and evolve our practices into the future.
Ordinary Execution and Witnessing of Testamentary Documents
Ontario has strict rules regarding the execution of a will. Unlike many other provinces, Ontario is not a “substantial compliance” jurisdiction, which would allow a court to validate a will that has not been executed in compliance with formal legislative requirements.
Section 4 of the Succession Law Reform Act, RSO 1990, c S.26(the “SLRA”), outlines the execution requirements of a will. According to subsection 4(1) of the SLRA, a will is not valid unless:
(a) it is signed at its end by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
Similarly, the Substitute Decisions Act, 1992, SO 1992, c 30 (the “SDA“), requires a continuing power of attorney for property or a power of attorney for personal care to be executed in the presence of two witnesses, who are also required to sign the document (subsections 10(1), 48(1)).
Under normal circumstances, a lawyer would meet with an estate planning client to directly supervise the execution of wills and powers of attorney, and often supply the witnesses (typically the lawyer and one of their staff). In a COVID-19 world, where many of us are working remotely with limited, if any, in-person contact with clients, the “in the presence of” requirement for the execution of testamentary documents is particularly challenging. At the time of execution of a will or shortly thereafter, the lawyer will commission an affidavit of execution sworn by one of the witnesses to the will. The affidavit of execution is later filed as part of the application for a Certificate of Appointment of Estate Trustee with a Will (also known as a “probate application”) after the testator’s death.
Virtual Witnessing, Execution in Counterpart Now Permitted
On April 7, 2020, in recognition of the barrier to the ability to obtain lawyer assistance in estate planning resulting from the requirement that witnesses be physically present with the testator/grantor at the time of execution or attestation, which has been exacerbated by the COVID-19 pandemic, an emergency Order in Council was made pursuant to subsection 7.0.02(4) of the Emergency Management and Civil Protection Act, RSO 1990, c E.9,to permit the virtual commissioning and execution of wills and powers of attorney. Under the April 7, 2020 Emergency Order, the “in the presence of” requirement imposed by both the SLRA and the SDA may now be satisfied by “audio-visual communication technology”. The Emergency Order defines “audio-visual communication technology” as any electronic method of communication in which participants are able to see, hear, and communicate with one another in real time.
As of April 22, 2020, wills and powers of attorney can now not only be virtually executed and witnessed, but also executed and witnessed in counterpart. A further emergency Order in Council made under the Emergency Management and Civil Protection Act, RSO 1990, c E.9, on April 22, 2020, revoked and replaced the previous Order dated April 7, 2020 to provide that identical copies of these documents may be executed in counterpart, with the copies together constituting the complete “Will” or “Power of Attorney”. While physical, “wet” signatures are still required (digital signatures are still not permitted), each signatory can execute a different physical (but identical) copy of the will or power of attorney, avoiding the need to circulate the same copy for execution by multiple people.
In order for virtual execution and witnessing and/or the execution and witnessing of a will or power of attorney in counterpart to be valid, one of the witnesses must be a licensee of the Law Society of Ontario.
Precautions should be exercised to ensure that the correct document is being executed and witnessed, as there may otherwise be some risk that the signed documents are not identical, leading to uncertainty regarding the validity and/or content of the document. Checklists outlining best practices in the virtual execution and witnessing of a will or power of attorney in counterpart are available here: Will Execution in Counterpart Checklist, Power of Attorney Execution in Counterpart Checklist.
In the circumstances of the execution of a document in counterpart, it may be advisable to update the attestation clause to refer to the execution and witnessing of the will or power of attorney in this manner. A precedent attestation clause is available here.
Furthermore, the existence of multiple copies that together form a complete will necessitates a different form of Affidavit of Execution, with each complete copy attached as an exhibit. A precedent Affidavit of Execution in respect of the virtual execution and witnessing of a Will in counterpart is available here.
These updates to the execution and witnessing requirements for wills and powers of attorney have eliminated significant safety concerns relating to the necessity of in-person meetings and the delivery of the same document from the client to each witness. These new developments are intended to remain effective during the current period of emergency. For the time being, these updates are welcome and have significantly enhanced our ability to assist clients with estate and incapacity planning during this period of uncertainty.
There remains an important distinction between the impact of the Emergency Order and the doctrine of substantial compliance. In substantial compliance jurisdictions, courts will typically review the will on a case-by-case basis, necessitating a legal proceeding to address the issue of the validity of the will, notwithstanding its procedural abnormalities. The Emergency Orders, however, simply permit a new procedure for the execution and witnessing of a will, without the need for an application to obtain validation by the court.
Innovative software, such as Hull e-State Planner, can assist lawyers in gathering information from clients, obtaining and documenting their instructions, illustrating an estate plan, and formulating a draft will in a timely manner. Once the draft will is prepared, video-conferencing software can also allow lawyers to “meet” with clients virtually to review draft estate planning documents prior to video execution with the witnesses in the testator’s virtual presence. These tools can greatly enhance a drafting solicitor’s ability to fulfill the planning needs of clients during the pandemic.
In limited circumstances where a client may not have access to or may not be able to use audio-visual communication technology, lawyers can consider providing clients with the information that they need to prepare their own holograph will, in accordance with section 6 of the SLRA. If this option is pursued, it is important to meet with the client once it is safe to do so to review the holograph will and, in most circumstances, prepare a more comprehensive, formal will to replace it.
The SDA does not include a provision for holograph powers of attorney. Accordingly, a continuing power of attorney for property or a power of attorney for personal care written entirely in the grantor’s handwriting and unwitnessed is invalid. However, the SDA does include a curative provision that may permit some leniency in respect of documents that do not strictly comply with the formal execution requirements set out in the legislation (subsections 10(4), 48(4)).
Commissioning of Affidavits
According to section 9 of the Commissioners for Taking Affidavits Act, RSO 1990, c C.17, “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public.” The Law Society of Ontario states that the best practice for commissioning documents remains for the lawyer acting as commissioner to be in the physical presence of the deponent to commission the document(s). However, until further notice, the Law Society is interpreting section 9 as not requiring the lawyer to be in the physical presence of the client. An alternative means of commissioning, such as a video conference, will be permitted. If virtual commissioning is used, lawyers should be aware of and attempt to manage the risks associated with this method of communication.
Estate Arbitration Litigation Management
In an effort to move estate matters forward during this period of instability, our firm has spearheaded an initiative called Estate Arbitration Litigation Management (“EALM“). As part of the initiative, senior members of the Estates Bar assist the parties as arbitrators in determining various procedural (and certain substantial) issues. The issues are set out in an EALM agreement, which is signed by each party before the arbitration. The arbitrations are conducted via teleconferencing or video conferencing. If the decision of the arbitrator requires a court order to become effective (i.e. the appointment of an estate trustee during litigation), the parties will agree to file a consent motion in writing to obtain the necessary order. Once court operations are resumed, the parties may return to court to address substantive issues or they may elect to proceed to arbitration or mediation.
While the function of the courts is expected to expand on July 6, 2020, one can only expect that hearing dates will be in high demand. EALM may remain a suitable, flexible, and cost-efficient alternative to formal litigation even as the courts resume normal operations.
Re-Execution of Wills After COVID-19?
After the pandemic has passed, lawyers are encouraged to meet with clients and review any estate or incapacity planning documents executed in compliance with the relaxed formal requirements during the state of emergency to ensure that the documents have been properly executed and witnessed. If there are any doubts in this regard, drafting solicitors may wish to have their clients re-execute wills and powers of attorney to ensure their validity.
While formally valid, there may also be some complications in terms of the application for a Certificate of Appointment of Estate Trustee with a Will in respect of a will that is virtually witnessed and/or executed in counterpart. Specifically, there is not yet any certainty with respect to the form of affidavit of execution that will be accepted by the courts as part of a probate application. This may be another consideration in determining whether planning documents executed during COVID-19 should be replaced in an effort to prevent expense and delay in an estate administration down the road.
COVID-19 has resulted in some temporary limitations to the way that we can practice law. However, legislative amendments and innovative tools, including those referred to above, provide the opportunity to limit the disruption to an estates practice so that we can continue to assist clients during this period of uncertainty. Even after the pandemic passes, the planning practices and tools that we are seeing emerge may continue to assist us in serving our clients the best that we can in a variety of circumstances.
Ian Hull is the co-founding partner (with his father Rodney Hull Q.C.) of Hull & Hull LLP. He is a certified specialist in Estate and Trust Law and Civil Litigation and also maintains a mediation practice through Hull Estate Mediation Inc.
Nick Esterbauer has been an associate lawyer at Hull & Hull LLP since his call to the bar in 2014. Nick holds a J.D. and a B.A. (Hons.) from Queen’s University. Nick has experience assisting clients with matters involving all aspects of estates and trusts.