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Recording the Remote Execution of a Will

In response to the COVID-19 pandemic, the Ontario government enacted O. Reg. 129/20 (the “Regulation”), which allows for the remote execution of wills and powers of attorney using video conferencing and counterpart. The Regulation was effective as of April 22, 2020 and was recently extended until September 22, 2020.

In light of the above, we can presume that many of the wills executed over the past five months were done using video conferencing. According to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, the Regulation may be extended by further orders up to July 24, 2021. Thus, it is possible that the remote execution of wills may continue in the weeks to come.

As with all client meetings, the execution of a will using video conferencing should be well-documented. In most cases, the attendees of a video conference have the option to record both the audio and visual of the meeting. Thus, those who seek a more comprehensive account of the virtual meeting might consider recording the video conference. For information on the benefits and risks of recording client meetings using virtual communication technologies, such as a will signing by video conference, you can visit the Law Society’s COVID-19 Practice Management FAQs.

In the event of a challenge to the will, any video recording of the will signing that may exist will likely be producible documentation. This recording has the potential to be a crucial piece of evidence in the dispute. First, the recording can be used to show that the requirements for due execution of the will have been complied with. To the extent that the testator commented on the dispositions made in their will during the will signing meeting, the video recording may also assist in confirming the testator’s wishes and providing a rationale for their testamentary choices. A video recording could also help demonstrate that the testator was of sound mind at the time they signed their will.

However, it is also important to note that any video recording of the will signing will probably be heavily scrutinized by the person challenging the will. Any behaviour displayed by the testator that could be perceived as hesitation, uncertainty, forgetfulness, or misunderstanding could potentially be used to undermine the validity of the will. As such, depending on the idiosyncrasies of the testator, and how they react to being on camera, retaining a video record of the execution of the will might not be especially helpful in warding off challenges to the will.

Thanks for reading!

Arielle Di Iulio