The practice of law has evolved greatly over the last few months, especially in the area of Estates.
One of the more recent changes comes with the revocation of O.Reg. 129/20: Signatures in Wills and Powers of Attorney and the amendments to the Substitute Decisions Act and the Succession Law Reform Act.
As of May 20, 2021, there is a requirement for the signatures and subscriptions on Wills or Powers of Attorney, executed using audio-visual communication technology, to be made contemporaneously. An acceptable manner of meeting this requirement is for the signatures and subscriptions to be made by signing or subscribing complete, identical copies of the Will or Power of Attorney in counterpart, which together constitute the entire document.
“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.
Under section 3.1(2) of the Substitute Decisions Act,
(2) A requirement under this Act that a power of attorney be executed in the presence of witnesses may be satisfied through the use of audio-visual communication technology, if,
(a) at least one person who is acting as a witness is a licensee within the meaning of the Law Society Act at the time;
(b) the signatures required by this Act are contemporaneously made; and
(c) the prescribed requirements, if any, are met.
Section 3.1(3) clarifies that SDA “for the purposes of clause (2)(b), the signatures required by this Act may, subject to any prescribed requirements, be made by signing complete, identical copies of the power of attorney in counterpart, which shall together constitute the power of attorney.”
Similarly, under section 4(2) of the Succession Law Reform Act,
(2) Subject to subsection (3) and to sections 5 and 6, 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.
Section 4(3) clarifies that while the use of audio-visual communication technology is permitted to satisfy the requirement in section 4(2)(b) or (c), the following requirements must be met:
(a) at least one person who acts as a witness is a licensee within the meaning of the Law Society Act at the time;
(b) the making or acknowledgment of the signature and the subscribing of the will are contemporaneous; and
(c) the requirements specified by the regulations made under subsection (7), if any, are met.
Further, section 4(4) notes that “for the purposes of clause (3) (b), signatures and subscriptions required to be made under clause (2) (b) or (c) may, subject to any requirements specified by the regulations made under subsection (7), be made by signing or subscribing complete, identical copies of the will in counterpart, which shall together constitute the will.”
Thank you for reading.