The Ontario Government has ordered the mandatory closure of all non-essential workplaces effective as of Tuesday March 24th at 11:59 pm. for a 14 day period, with the potential of lengthening that period as the COVID-19 pandemic unfolds. While the professional services of lawyers have been listed as one of the essential workplaces excluded from the mandatory closure, the delivery of estate planning legal services is particularly challenging in these trying times.
Notwithstanding being an essential workplace, every level of government and our medical health officials have asked people to stay home, only go out to deal with essential matters, maintain a minimum of 2 metres/6 feet social distancing, and practice appropriate hygiene, particularly hand washing, as well as self-quarantine or self-isolation for those that are unwell or have been travelling. In addition, all persons over 70 years of age and individuals who are immunocompromised (including those with diabetes or lung problems) are advised to self-isolate for the 14 day period.
Under these circumstances, the ability to carry out an estate planning retainer is extremely challenging, while the need to do so has become ever pressing for the very people who have been advised to self-isolate.
The Law Society of Ontario has provided some helpful general guidance1 , however these types of engagements typically require an in-person initial meeting in order to confirm the client's identity, to test capacity, to guard against undue influence or duress, to maintain strict confidentiality, and to effectively communicate with the client. The use of video-conferencing such as Zoom, Skype, Facetime and other platforms need to be carefully considered and a risk assessment undertaken to determine if proceeding in this manner is appropriate.
Assuming these steps can be undertaken, arranging for the actual execution of a valid Will and Powers of Attorney (for property and for personal care) presents a greater challenge. This stems from Ontario's strict rules governing the execution of estate planning documents.
The Succession Law Reform Act provides that Wills must be in writing and must be signed by the testator in the presence of two or more attesting witnesses who are also present at the same time. Furthermore, the witnesses cannot be beneficiaries or spouses of beneficiaries. The Substitute Decisions Act provides for the same formal signing requirements for both a Power of Attorney for Property and a Power of Attorney for Personal Care, with similar but broader restrictions on who the witnesses can be. In both the case of a Will and that of Powers of Attorney, presence has always been interpreted as a requirement for the witnesses to physically be in the same room as the testator or grantor. While there are narrow "substantial compliance" provisions with respect to the execution of Powers of Attorney for Property and Powers of Attorney for Personal Care allowing a court to declare as effective such Powers of Attorney that do not comply with the signing formalities or breach the restriction on witnesses if the court is satisfied that it is in the grantor's interests to do so, there is no similar substantial compliance provisions for Wills.
The options are fairly limited for work-arounds when it comes to the valid execution of testamentary or incapacity planning documents and include the following:
- Have the client attend at the lawyer's premises to sign with the lawyer and another witness using all of the necessary social-distancing and hygiene precautions at the lawyer's office and during the client's transportation to the office. This has proved to be impossible for self-isolated clients, clients in nursing or retirement homes and for lawyers whose offices are closed with staff working exclusively remotely.
- Send the documents to the client for execution in the presence of two witnesses arranged by the client. This is challenging at the best of times and is usually considered a last resort by drafting lawyers. The ability of the client to find two witnesses who are not disqualified to be witnesses and who are willing to be part of the execution process is quite limited under the current circumstances. If it must be done, detailed signing instructions are provided to the client and arrangements made to confirm proper execution afterwards. While some practitioners have suggested the use of technologies such as Skype, Face Time or Zoom or video-taping the signing for viewing by the lawyer to ensure due execution and an assessment of capacity, another approach suggested is to amend the retainer to have it exclude responsibility for due execution and assessment of capacity2 . More often than not, mistakes are made by the client in the execution which need to be attended to afterwards to correct by re-signing. The other downside of this process is that the ability of the lawyer to attest to the presence of undue influence without knowledge of who is in the room at the time of signing, even if technology is being used, may be compromised.
- Emergency holograph Will or interim fixes by holograph Codicil. The Succession Law Reform Act does provide for the ability of a testator to make a valid Will without the need for witnesses if the document is made wholly in his or her own handwriting and the testator signs the document. This by necessity is limited to a simple Will as a temporary fix3 , since most Wills tend to be fairly long and writing out the entire Will in the testator's own handwriting is not feasible. At best, if a Will needs updating it may be possible to do so by a holograph Codicil. Note that this is not an option for the execution of Powers of Attorney. Holograph powers of attorney are not authorized in the Substitute Decisions Act. Although the "substantial compliance" provisions of that statute are helpful, they require a court determination which can be very time consuming and expensive.
- A recent suggestion by Ian Hull and Jordan Atin4 to deal with more complex Wills is the use of a holograph Will and "incorporation by reference' to incorporate an unsigned Will into a holograph Will. As indicated in their article, this is not settled law by any means and proceeding in this manner is risky given the specific wording of the Succession Law Reform Act requiring a holograph Will to be "wholly" in the testator's own handwriting.
This crisis has highlighted the need to consider legislative reform, including entering the era of modern technology in estate planning.
In the long-term, legislation to allow and properly provide for e-Wills ought to be implemented. The Uniform Law Commission in the United States in July 2019 adopted revised text and commentaries to its Uniform Electronic Wills Act5 .
The official description is the following:
"The Uniform Electronic Wills Act permits testators to execute an electronic will and allows probate courts to give electronic wills legal effect. Most documents that were traditionally printed on paper can now be created, transferred, signed, and recorded in electronic form. Since 2000 the Uniform Electronic Transactions Act (UETA) and a similar federal law, E-SIGN, have provided that a transaction is not invalid solely because the terms of the contract are in an electronic format. But UETA and E-SIGN both contain an express exception for wills, which, because the testator is deceased at the time the document must be interpreted, are subject to special execution requirements to ensure validity and must still be executed on paper in most states. Under the new Electronic Wills Act, the testator's electronic signature must be witnessed contemporaneously (or notarized contemporaneously in states that allow notarized wills) and the document must be stored in a tamper-evident file. States will have the option to include language that allows remote witnessing. The act will also address recognition of electronic wills executed under the law of another state. For a generation that is used to banking, communicating, and transacting business online, the Uniform Electronic Wills Act will allow online estate planning while maintaining safeguards to help prevent fraud and coercion."
E-wills certainly make sense from the perspective of convenience, efficiency, and accessibility. Understandably, the process must meet all of the safeguards now in place in the paper format. Ensuring authenticity of the digital signature; managing the witnessing; securing the content of the document; attesting to issues of capacity, knowledge and approval and undue influence; and registering and securing the storage of wills are all key components of what needs to be addressed in the legislation allowing this form of Will. Because e-Wills are not currently a possibility in Ontario, if legislative changes authorized this form of execution, estate lawyers would need to familiarize themselves with electronic signatures and secure forms of document transmission and storage on relatively short notice and obtain the required technology.
In the immediate circumstances, possible emergent changes that could be quickly effected in Ontario include:
- the addition of a substantial compliance provision to the Succession Law Reform Act respecting the execution of Wills
- the expansion of s.5 of the Succession Law Reform Act to include the current emergency circumstances. That section currently allows members of forces on active service to make a Will in writing without any requirement for witnesses
- adding the ability to virtually witness the execution of Wills and Powers of Attorney that are still signed in accordance with the formalities thereby permitting the testator or the grantor to sign a Will or Power of Attorney in paper form with two witnesses watching by video-conference. The witnesses could then sign separate statements in support of their witnessing, which, together with the original Will or Power of Attorney, would meet the formal requirements of due execution of such documents.
The need for some form of legislative change is now pressing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.