Executing Wills and Powers of Attorney During the Pandemic

Written by: Albert Oosterhoff, Originally posted to the WEL Blog on April 23, 2020

The COVID-19 pandemic has caused great upheaval in our society. Social intercourse is now very much curtailed. Among other things, the pandemic has no doubt caused people to focus on their mortality and as a result they desire to put their house in order, just in case. That typically means making or updating your will. But the social distancing restrictions imposed because of the pandemic have made this particularly difficult. How can you, as a solicitor, ensure that the formal requirements of a will are complied with when you and the witnesses must keep a distance of least two meters from each other? These requirements are contained in the Succession Law Reform Act.[1] Section 4(1) provides:

4. (1) Subject to sections 5 and 6,[2] a will is not valid unless,

(a) at its end it is signed 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.

Among other things, the case law makes it clear that “in the presence of the testator” means that the witnesses must actually see the testator sign and the testator must see each of them sign while both are in her presence at the same time. In other words, they must be in each other’s line of vision.[3] Section 4 does not require that the witnesses must sign in each other’s presence,[4] but that is common practice and indeed, it is good practice.

But if you have to keep your social distance, observing these requirements can be difficult and the problem is compounded when the testator is in a senior’s residence or a nursing home and the residence or home has banned visitors because of the pandemic.

The wills legislation of most other provinces contains a “substantial compliance” provision. If the court is satisfied that the document embodies the deceased’s testamentary intentions, the court may make an order declaring a document to be effective as a will even though it has not fully complied with the statutory formalities.[5] Parties can rely on such legislation when the formalities have not been fully complied with because of social distancing restrictions. But we can’t do that in Ontario.

Similar problems arise with the execution of powers of attorney, although these requirements are less restrictive. Section 10(1) of the Substitute Decisions Act[6] provides:

10. (1) A continuing power of attorney shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness.

The problem was raised with the Honourable Doug Downey, Attorney General of Ontario, who consulted with a number of practitioners about finding a solution for the duration of the pandemic restrictions. Under s. 7.0.2(4) of the Emergency Management and Civil Protection Act[7] the Lieutenant in Council has power to make emergency orders of various kinds during an emergency, including, inter alia, the following:

12. Authorizing, but not requiring, any person, or any person of a class of persons, to render services of a type that that person, or a person of that class, is reasonably qualified to provide.

. . .

14. Consistent with the powers authorized in this subsection, taking such other actions or implementing such other measures as the Lieutenant Governor in Council considers necessary in order to prevent, respond to or alleviate the effects of the emergency.

The Attorney General accordingly caused an emergency order to be made on 7 April 2020. The Regulation making it, O. Reg. 129/20, provides:

ONTARIO REGULATION

made under the

EMERGENCY MANAGEMENT AND CIVIL PROTECTION ACT

ORDER UNDER SUBSECTION 7.0.2 (4) OF THE ACT –

SIGNATURES IN WILLS AND POWERS OF ATTORNEY

Whereas an emergency was declared pursuant to Order in Council 518/2020 (Ontario Regulation 50/20) on March 17, 2020 at 7:30 a.m. Toronto time pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act (the “Act”) and has been extended pursuant to section 7.0.7 of the Act;

And Whereas the criteria set out in subsection 7.0.2 (2) of the Act have been satisfied;

Now Therefore, this Order is made pursuant to subsection 7.0.2 (4) of the Act, in particular paragraphs 12 and 14 of that subsection, the terms of which are set out in Schedule 1;

And Further, this Order applies generally throughout Ontario;

And Further, this Order shall be in effect for the duration of the declared emergency, subject to section 7.0.8 of the Act.

Section 1 of Schedule 1 to the order stated that the making or acknowledgement of a signature on a will or for the subscribing of a will “may be satisfied by means of audio-visual communication technology provided that at least one person who is providing services as a witness is a licensee within the meaning of the Law Society Act at the time of the making, acknowledging or subscribing”. Section 2 made similar provisions for the execution of powers of attorney.

However, concerns remained about the sufficiency of the order. In particular, it was suggested that the order should make provision for signing a will or power of attorney in counterpart. Accordingly, the Attorney General caused a new order to be made on 22 April 2020 that amends the Regulation of 7 April. The amending Regulation, O. Reg. 164/20, provides in full:

ONTARIO REGULATION

made under the

EMERGENCY MANAGEMENT AND Civil, PROTECTION ACT

Amending O. Reg. 129/20

(ORDER UNDER SUBSECTION 7.0.2 (4) OF THE ACT- SIGNATURES IN WILLS AND POWERS OF ATTORNEY)

1. Schedule 1 to Ontario Regulation 129/20 is revoked and the following substituted:

SCHEDULE 1

Definition

1 In this Order,

“audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.

Wills

2 (1) A requirement under the Succession Law Reform Act that a testator or witnesses be present or in each other’s presence for the making or acknowledgment of a signature on a will or for the subscribing of a will may be satisfied by means of audio-visual communication technology provided that at least one person who is providing services as a witness is a licensee within the meaning of the Law Society Act at the time of the making, acknowledgment or

(2) If a will is executed with the assistance of audio-visual communication technology as authorized by subsection (1), the signatures or subscriptions required by the Succession Law Reform Act may be made by signing or subscribing complete, identical copies of the will in counterpart, which shall together constitute the

(3) For the purposes of subsection (2), copies of a will are identical even if there are minor, non-substantive differences in format or layout between the

Powers of attorney

3 (1) A requirement under the Substitute Decisions Act, 1992 that witnesses be present for the execution of a power of attorney may be satisfied by means of audio-visual communication technology provided that at least one person who is providing services as a witness is a licensee within the meaning of the Law Society Act at the time of the

(2) If a power of attorney is executed with the assistance of audio-visual communication technology as authorized by subsection (1), the signatures required by the Substitute Decisions Act, 1992 may be made by signing complete, identical copies of the power of attorney in counterpart, which shall together constitute the power of

(3) For the purposes of subsection (2), copies of a power of attorney are identical even if there are minor, non-substantive differences in format or layout between the

I hope and expect that the amended order will facilitate the execution of wills and powers of attorney during the current restrictions. I am of opinion that once the Pandemic is over the Legislature should engage in a thorough revision of the Succession Law Reform Act. It is more than 40 years old and it is showing its age. Among other things, I believe that we would be well-advised to add a substantial compliance provision to the revised legislation.

Although the amended order will at least ameliorate an emergent problem, it will not work in all situations. For example, it will not help if the testator does not have access to audio-visual communication technology. Nor does the order necessarily make things easier for lawyers. Lawyers who take instructions for wills and attend to their execution have an obligation to ensure as best they can that: (a) the testator knows and approves of the content of his will; (b) has testamentary capacity; and (c) has not been subjected to undue influence in the making of the will. This can be difficult in “normal” situations, but it becomes more so when the lawyer is not in the physical presence of the testator. However, the obligation remains and she must do whatever she can to satisfy herself that the will is the will of a free and capable testator, who understands what the will says. Because the lawyer will only be in the virtual presence of the testator, it will be more difficult to satisfy his obligation. Therefore, the lawyer will need to take extra care when taking instructions for a will and attending to its execution under the terms of the amended order. The Law Society and other bodies are putting on CPD programs to advise lawyers about the new rules and those are helpful.[8] Others are developing guidelines and checklists to follow in these circumstances.[9] Lawyers are well-advised to take advantage of such programs and guidelines.

—

[1]   R.S.O. 1990, c. S.26.

[2]   These sections deal with privileged and holograph wills respectively, which do not have to be attested.

[3]   See, e.g., Chesline v. Hermiston, [1928] 4 D.L.R. 786, 62 O.L.R. 575 (H.C); Re Wozciechowiecz, [1931] 4 D.L.R. 585 (Alta C.A.).

[4]   See Chester v. Baston (1980), 118 D.L.R. (3d) 323 (Sask. C.A.),

[5]   The legislation also applies to the revocation, alteration, and revival of a will.

[6]   S.O. 1992, c. 30. And see s. 48(1) for a similar provision for the execution of a power of attorney for personal care.

[7]   R.S.O. 1990, c. E.9.

[8]   See, e.g., the Law Society of Ontario’s program, “Your Wills and Estates Practice and the COVID-19 Pandemic: What You Need to Know Right Now”, an audio program that was made available on 8 April 2020. https://store.lso.ca/wills-estates-covid-19

[9]   See, e.g. WEL Partners, “Lawyers’ Checklist: Checking for Indicators of Undue Influence During Virtual/Digital (Video) Meetings”. https://welpartners.com/resources/WEL-Checklist-Undue-Influence-and-Video-Conferencing-2020.pdf