Category: Estate Planning
Although the temporary emergency Order has only been in place for a few days, there is no question that lawyers have already begun to virtually witness the execution of wills and powers of attorney. A complimentary CPD program on the issue was put on by the Law Society of Ontario (LSO) last week, chaired by Ian Hull. A link to it is here. LawPRO has also provided a helpful commentary on the subject matter from the perspective of risk-avoidance here, and below I draw upon the points made that may help lawyers lessen their risk of a malpractice claim.
As much as lawyers may be focused on adhering to the requirements under the emergency Order, LawPRO reminds us that the most common cause of malpractice claims in the estates area is inadequate investigation – a failure to inquire about assets, prior wills and details about past and present marital and familial relationships. The second most common error is a communication failure – not ensuring consistency between the draft will and the instruction notes, and not ensuring that the solicitor and client each understand the other. So it is important to keep risk management tips here top of mind, particularly given that it may be more difficult to effectively communicate or ensure that clients understand documentation when conducting virtual client meetings.
As related specifically to virtual witnessing of wills and powers of attorney, LawPRO has various suggested steps to lessen the risk of a claim, which I comment on below.
- Comfort – Some clients may not be as ease with video technology and/or discussing personal matters through this medium. Take the time to establish that all participants are comfortable.
- Identification – As a result of Covid-19, the LSO is not requiring face-to-face meetings to identify or verify a client’s identity. Here you can find the LSO’s guidance on the issue, and LawPRO’s video conference checklist (accessible through the LawPRO link above) will help lawyers consider the steps needed before, during and after a video conference meeting.
- Capacity and undue influence – These known risks may be more difficult to assess through virtual communication, making it all the more important that certain precautions be taken, such as: (i) asking open questions, and follow up questions, (ii) asking questions to establish that the client is acting independently (e.g. explore relationships and reasoning in detail when marked changes are being made), (iii) when acting for one client, make sure the client is alone in the room (consider asking for a video pan of the room if you can’t clearly see it), and (iv) take notes reflecting consideration of capacity and undue influence, especially if there are any concerns. Here you can find a checklist WEL Partners has created for indicators of undue influence during video meetings, and the LSO has released a special comment on the issue here.
- No counterparts – You will need multiple virtual meetings so each witness can sign the original will or power of attorney. Video conference wills will also likely require a different affidavit of execution, and here you can find our recent blog that provides sample affidavits of execution.
- Document your work – Particular scrutiny may be given to documents executed during this health crisis. Taking detailed notes or recording the meeting (with client consent) will document what occurred, and reporting to the client thereafter will serve to confirm your instructions.
- After the emergency – Although not required, once it is safe to do so consider recommending that your clients re-execute their testamentary documents in the physical presence of witnesses.
To help mitigate the risk of a claim, Hull eState Planner has created checklists for executing wills and powers of attorney by video. The will execution by video checklist can be found here and the powers of attorney execution by video checklist can be found here.
The Covid-19 situation is creating rapid change, and at Hull & Hull LLP we are monitoring things on a daily basis. I encourage you to continue to access our website for further updates. Our resource page can be found here.
Thanks for reading and have a great day,
Does a testator have to sign his or her own Will to be valid? A little used provision of the Succession Law Reform Act permits a Will to be signed by some other person (an “amanuensis”) in testator’s presence and by the testator’s direction.
Our managing partner, Suzana Popovic-Montag, wrote several on this very topic.
With the logistical issues associated with execution of wills by video-conference, it may be that this manner of execution may become more widely used.
If this is to be done using presence by video conference, we have come up with some suggestions in our Hull e-State Planner Blog. (click here)
Note that the Substitute Decisions Act, 1992 does not specifically permit execution by an amanuensis for Powers of Attorney.
We continue in unchartered waters and we welcome any suggestions or comments.
As of April 7, Wills can be witnessed by video conference.
This will likely require a different affidavit of execution. The typical affidavit of execution is a Court Form – Form 74.8- may not be sufficient if the Will is witnessed by video conference.
Likely, two separate affidavits of execution will be necessary.
In light of these changes, we have created a set of sample Affidavits of Execution for your consideration. Of course, we do not know what the Courts will ultimately require as evidence of execution, so for now it’s just a best guess.
Click here to access sample Affidavits of Execution and further information about Affidavits of Execution for video witnessing.
Feel free to reach out with any questions,
As of April 7, Wills can be witnessed by video conference.
As you are aware, two witnesses must be “in the presence of” the testator when a typed Will is signed. This has historically required physical presence.
The new Emergency Order now confirms that the “presence” may be by “audio-visual communication technology”.
Importantly, at least 1 of the 2 witnesses must be a licensee of the Law Society of Ontario.
In light of these changes, we, together with Hull e-State Planner, have created a suggested Video Execution Checklist to use for execution of wills in these circumstances.
Click here to access the Checklist and further information about the Emergency Order.
Feel free to reach out with any questions,
We have blogged over these past couple of weeks about the novel issues which have arisen with the drafting and execution of Wills during the COVID-19 pandemic. Although we remain hopeful that there will be guidance and/or legislative changes from the government soon regarding how to address issues such as the witnessing of Wills for individuals who are in quarantine or self-isolation, a recent article from Dale Barrett in Lawyers Daily notes that it may not all be doom and gloom surrounding estate planning during the COVID-19 pandemic, as the recent significant drop in the stock market could make it an ideal time for certain individuals to complete an “estate freeze”.
An estate freeze at its most basic accomplishes exactly what the name implies, insofar as it “freezes” the value of an individual’s assets at a particular date and time prior to their death, with any “future growth” on the assets being attributed to someone else (often the individual’s children). The use of an estate freeze is often done as a tax planning tool, with the underlying rationale being an attempt to reduce the potential taxes associated with the deemed disposition of their assets upon their death, which is accomplished by “freezing” the value of the assets at their current value such that the growth is not as great as it otherwise may have been (assuming the asset would continue to grow in the future). Although the structure that is required to accomplish this is somewhat complicated and will require the involvement of professionals, in a very basic overview it is typically accomplished by having the individual create a new company that will ultimately hold the assets being “frozen”, with two classes of shares being created the first which is retained by the individual implementing the freeze and fixed at the value of the assets on the day the of the freeze, with the second class of shares being attributed any “gain” in value of the assets after the freeze attributed to someone or something else other than the individual carrying out the freeze (often ultimately benefiting their children). The implementation and steps required is more complicated and nuanced than the description above suggests, and will almost certainty require the involvement of professionals to ensure that the individual does not go offside complex tax rules, but you get the basic idea.
Although the availability and potential use of an estate freeze is not for everyone, the recent drop in the stock market associated with COVID-19 could create a potential advantage and incentive for people considering an estate freeze to do so now as they could potentially “freeze” the value of their assets at a lower value than they otherwise may have been able to. If you are considering an estate freeze you may wish to speak with a professional now about whether it may be an opportune time to do so and to ensure that it is properly implemented.
Thank you for reading and stay safe and healthy.
In uncertain times, it can be helpful to remember what we can do to plan for our own health, security, and well-being. In the past, we have blogged about “longevity planning” (i.e. advice for longer life expectancy) and the resemblances it has to executing powers of attorney for personal care (“POA PC”).
In Ontario, powers of attorney for personal care are generally governed by the Substitute Decisions Act, 1992 (the “SDA”). The Health Care Consent Act, 1996 also applies to certain decisions made by attorneys for personal care.
Personal care decisions are about health care, medical treatment, diet, housing, hygiene, and safety. An attorney for personal care will be able to make almost any decision of this nature that the grantor would normally make for him/herself when they were capable.
According to the SDA, an attorney for personal care must follow the known wishes of the grantor or make decisions in the best interest of that person. In doing so, the attorney must choose the least restrictive and intrusive course of action that is available and is appropriate in the circumstances.
If you are appointed as an attorney for personal care, below is a non-exhaustive list of steps you should take or obligations you may have:
- Obtain a copy of the POA PC and determine whether it is in effect. The POA PC only comes into effect once the grantor is incapable of making his or her personal care decisions.
- Determine whether there are any specific instructions/restrictions in the POA PC.
- Encourage the grantor’s participation in decision-making and try to foster the grantor’s independence as much as possible.
- Encourage and facilitate communication between the grantor and his/her family and friends.
- Consider developing a guardianship plan. While this is not mandatory for an attorney whose powers stem from a POA PC, it may help provide a roadmap for future decisions.
The above checklist is non-exhaustive list of some of the obligations an attorney for personal care have. Section 66(4) of the SDA also sets out a number of factors to consider when determining what personal care decisions are in the incapable person’s best interest. Most importantly, an attorney for personal care must not lose sight of the fact that he/she is a fiduciary and held to a higher standard.
Making decisions as an attorney can be difficult, particularly in uncertain circumstances. It is important to be prepared. The Ministry of the Attorney General also provides some useful information about an attorney’s obligations here. A lawyer should be consulted so the attorney understands their duties.
Thanks for reading!
We have previously blogged about NoticeConnect’s Canada Will Registry. The Will Registry allows lawyers and law firms to register their clients’ estate planning documents. Other lawyers are then able to search the Registry for the Will of someone who has passed away. The Registry alerts the lawyer who registered the Will of the search, and the lawyer can decide whether to disclose the existence and location of the Will.
On Tuesday, Premier Doug Ford released a list of essential businesses, which included lawyers, meaning that law firms may remain open during the shut-down of non-essential businesses in Ontario. That being said, we are still being encouraged to maintain social distancing, and many of us are working from home to try to help prevent the spread of COVID-19.
Working from home can present a unique set of challenges for solicitors with an estate planning practice, given the volume of original documents that must be stored, organized, updated, and maintained. Records may be kept partially, or entirely by paper records, which are physically located at the office, and inaccessible from home.
The Will Registry can be a helpful tool in organizing estate planning documents electronically, in order to reduce or eliminate issues with accessing records and information when working remotely.
NoticeConnect recently posted this blog setting out how the Will Registry can help professionals work from home. For instance, one of the tools mentioned is the ability to attach electronic copies of documents, such as Wills, to your registered records. This would allow you, and any staff who have access to your digital Will vault, to access and review estate planning documents. This may be helpful in a situation where a client contacts you seeking advice as to whether their Will needs to be updated; you would not be required to go into the office in order to review the client’s Will. There are also organizational tools, which can help with searching, sorting, and updating your records.
In these uncertain and constantly changing times, it is useful to consider any tools that may help us adapt and maintain our practice.
Thanks for reading and stay safe!
These other blog posts may also be of interest to you:
Most of us are used to meeting our clients in person. With that option on hold for now, we are having to adopt new practices, like “virtual” meetings. How can we make virtual meetings work for estate planning where communication is so important?
Like many of you, we are turning to technology.
Remote meeting software, like Skype and Zoom, allow us to communicate, see and hear our clients and vice versa. And yet, there can still be a disconnect in trying to ensure that both parties understand one another.
There is now software that can help with that communication. Hull e-State Planner, which we created, is cloud based software that can be accessed from home and shared with your client via Zoom or Skype. It’s a visual platform so you and your client can literally be on the same page – even in different locations.
The client’s family tree and list of assets are displayed on the screen.
You can drag and drop assets, creating legacies and bequests, while the client watches their plan being developed.
While discussing their instructions, you can show the client the different implications of their decisions.
At the meeting, you can give the client a graphic summary of their Will.
Once the meeting is over, you can automatically generate the Will and Powers of Attorney in Word format.
We have found that virtual meeting software, when coupled with Hull e-State Planner, can help make those estate planning meetings much more efficient and effective.
As well, we also understand there has been a financial impact to your practice during this time. In what we hope may help a little, we have decided to waive all Hull e-State Planner fees, for the foreseeable future until things settle down.
We’d be happy to have you join us for a Free Webinar where we will show you how we are using virtual meeting software and Hull e-State Planner together and our thoughts on getting Wills signed up.
The Webinars are:
Click on the date to sign up for the Webinar.
Wishing you and your loved ones good health,
Over the past few blogs, we discussed alternates for having Clients sign Wills when we can’t meet with them in person.
One of the options was to have client sign holograph Wills. While that may work with more straightforward instructions, it won’t be practical where testamentary trusts are necessary.
In today’s blog, we will focus on an alternate option – “incorporation by reference” of an unsigned “Will” into a holograph Will.
The terms of one document (“the Incorporated Document”) can be included in another document without repeating all of it provisions. This is known as “incorporation by reference”. In order to incorporate the terms of the Incorporated Document into a Will, there are four well established requirements:
- The Incorporated Document must be referred to in the Will;
- The reference in the Will to the Incorporated Document must be sufficient to identify the Incorporated Document; and
- The Incorporated Document must be in existence at the time the Will is signed. It cannot come into existence at a future date.
- The Incorporated Document must be “entirely separate and apart” from the Will.
The most common examples of incorporation by reference in a Will are a binding memorandum regarding the disposition of Personal Effects and a trust company’s compensation agreement.
Rather than just a list of personal effects or compensation agreement, can the Client incorporate an entire unsigned Will by reference?
Where a testator in a duly executed will or codicil refers to an unattested written paper (whether of a testamentary form or character or not), as a written paper then in existence in such terms that it may be ascertained, the paper so referred to becomes part of his will, in other words, is incorporated therein; provided always that the paper referred to is actually in existence at the time of the execution of the will or codicil. Probate Practice and Re Warren (1930), 38 O.W.N. 358 (Ont. H.C.),
This concept was not disputed in Re Coate Estate, (1987) 26 E.T.R. 161, although the facts in that case did not lead to a finding of incorporation by reference.
Similarly, in Re Dixon-Marsden Estate (1985), 21 E.T.R. 216 (Ont. Surr. Ct.), the Court found that the particular handwriting did not qualify as a holograph document. Nevertheless, Judge Misener seemed to endorse the use of a holograph document incorporating the terms of a formal, but unexecuted Will. In that case, a typed Will on a single piece of paper was not properly signed with two witnesses. However, at the bottom of the page the testator wrote, in his own hand, “The above-mentioned are in short those to whom my estate is left” and below that he signed his name.
“I have always understood that the doctrine of incorporation by reference contemplates the existence of a testamentary document that qualifies for probate, independent of the document sought to be incorporated. If that is so, the condition precedent to the argument that a typewritten document is incorporated is the tendering of a document wholly in the handwriting of the testator and bearing his signature that can be admitted to probate all by itself. Therefore, on the facts of this case, the handwritten words ‘the above-mentioned are in short those to whom my estate is left’ must be capable of admission to probate.”
In that case, the handwritten portion could not be separated from the typed portion and so did not satisfy the requirement that the two documents be “entirely separate”.
In Re Chamberlain Estate, the deceased enclosed two documents in an envelope:
- A printed Will form, which the deceased signed but was not witnessed.
- A single sheet of paper wholly in the handwriting of the deceased which listed several of the deceased’s assets. The deceased wrote his name at the bottom of the sheet.
The issue before the court was whether the documents could be read together as a valid Will.
Justice Maher emphasized that although documents referred to in a testator’s Will or codicil may not be duly executed in accordance with The Wills Act, they may nonetheless be incorporated in the Will.
Justice Maher found that the document written wholly in the handwriting of the testator was a valid holograph Will and it met the conditions outlined above. Although the documents were not completed at the same time, the incorporation by reference doctrine still applied as they were testamentary in nature and wholly in the handwriting of the deceased.
The second document being testamentary in character and wholly in the handwriting of the deceased is a valid holograph will and it has been held that the doctrine of incorporation by reference applies to holograph wills: Re Long Estate,  1 All E.R. 435.
Based on these authorities, it appears that a holograph Will could incorporate the terms of a non-executed formal Will as long as the 4 conditions were properly met.
However, there is an outlier Ontario case that is problematic- Facey v. Smith (1997), 17 E.T.R. (2d) 72 (Ont. Gen. Div.).
In Facey, the court was faced with an unseemly fact scenario. The deceased was murdered by her husband who later, on the same day, committed suicide. The issue was whether certain writings made by the deceased were holograph Wills and if so, did thy properly incorporate the terms of a formal Will by reference.
The court found that a holograph documents did not qualify as a Will because it did “not show a fixed final intention as to disposition on death”. However, in obiter, the Court said the following:
“I have no difficulty with the doctrine of incorporation by reference applying when the Will into which type written words are to be incorporated is itself a witnessed Will. When those type written words are declared incorporated, the statutory requirement of the testator’s signature duly witnessed is wholly satisfied. In the case of a holograph Will, however, incorporation of typewritten words does not meet the statutory requirement. That requirement is that the holograph Will, to be valid, must be “wholly by his own handwriting and signature” and patently the incorporated typewritten words are not in the testator’s handwriting. The doctrine of incorporation by reference was developed to relieve against the harshness of the Wills Act and to give effect to the intentions of a testator. I am not satisfied that the law in Ontario is or should be that typewritten documents can be incorporated into a holograph Will. The purpose of requiring certain formalities in the making of Wills is to prevent fraud and no fraud is here alleged. Although not formally required, my answer to question two is “no”.
If you decide to recommend this strategy, here are a few suggestions:
- Have the formal Will identified as “Schedule A”;
- Ensure that the Holograph document qualifies as a valid Will, both in terms of execution and in terms of testamentary intent.
- Have the Client initial each page of “Schedule A” and sign it.
- Properly incorporate by reference Schedule A in the Holograph Will.
Here is a link to a sample Client Instruction Sheet for your consideration. Use with caution!
Hoping you are safe and healthy,
In our blog on March 18th, we gave some ideas for getting formal wills executed when the lawyer couldn’t be present to witness. In today’s blog, we have a few more options for our clients to consider if getting a Will executed immediately is necessary.
As we all know, holograph Wills are valid in Ontario. To qualify as a valid holograph Will, the document must be in the handwriting of the Will-maker and signed. The Succession Law Reform Act speaks to being “wholly” in the Will-maker’s handwriting. However, case-law supports the validity of a handwritten portion of a document, even if the entire document is not in the Will-maker’s handwriting. To the extent any part of the document is not in the Will-maker’s handwriting, that part will be excluded from the otherwise valid holograph document.
We have several clients who are in isolation making it impossible to have two witnesses execute our drafted Will. For a simple but, emergency situation, we are recommending that a holograph Will be done. We have a few key provisions to be included as a bare minimum:
- Identifying the document as a Will;
- Revoking prior Will;
- Appointing an executor;
- Simple dispositive provisions;
- Executor’s power to sell; and
The key instructions are:
- The entire document must be handwritten by the Will-maker; and
- The Will-maker must sign the document at the end.
Proof of handwriting will be necessary if the holograph Will must be probated. One option that may come in handy is to have the Will-maker video the writing and signing of the document.
We also strongly recommend that the client come in to sign a formal Will as soon as possible.
Click on the link to see a sample Client Holograph Will Instruction sheet for use in these kinds of situations.
In Monday’s blog, we’ll discuss the novel idea that our colleague, Mary Stokes raised. Can a client use a simple holograph Will to incorporate the terms of a comprehensive formal Will which can’t be properly signed because of a lack of witnesses?
Hope you are all safe and healthy,