Category: In the News
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,
Mediation, with plenary sessions, small break-out rooms for parties and their counsel, and a mediator shuttling between the rooms seem like a distant, archaic memory. The former format of mediation is the antithesis of social distancing.
(I find it hard to now watch a tv show or movie without thinking to myself, “That’s not very good social distancing.”)
However, the show, litigation and mediations, must go on. Welcome to the age of virtual mediation.
Programs such as Zoom allow for parties to meet and discuss ideas and resolve differences without being physically in the same room. While the virtual alternative is not perfect, it is workable.
With Zoom, there are a few ways for mediations to be accommodated. One option is for the organizer to set up several online meetings: one to be used as a plenary session where everyone has access, and one for each of the parties to the litigation. In the plenary room, all of the parties and their counsel can join. In the parties’ separate room, only the party and their counsel can participate, with the mediator joining and leaving as necessary.
Another option is for the organizer to set up one meeting. The organizer would be able to admit participants into the meeting room, or put them into a virtual “waiting room” while others remain in the meeting room.
Another consideration when organizing a Zoom mediation is to ensure that the organizer has a Pro account or better. While the Basic account is free, it only allows for meetings of 40 minutes or less. The Pro account, at $20 per month per host, allows for meetings of up to 24 hours, which should probably enough for most mediations. (Some mediators are slow mediators: you know who you are.)
Some reporting services are offering virtual mediation assistance. Neesons, for example, can offer extensive technical support for mediations, examinations and arbitrations. They have also hosted a number of presentations on virtual examinations, arbitrations and mediations. Contact them if you want more information.
(Fun fact: Zoom Video was trading at $68.04 on December 31, 2019. On March 23, 2020, it was trading at $159.56. As of the time of writing this (April 2, 2020), share prices had relaxed to $118.10.)
Thank you for reading. Stay healthy. Practice safe litigation.
There are numerous resources available to estates and trusts lawyers to help them navigate their practice during these COVID-19 times. As there does not yet seem to be one amalgamated repository, I thought I would use today’s blog to highlight some sites that I tend to be frequenting:
The Law Society of Ontario
The LSO has created an easy to read list of FAQs. Certain questions that I have found particularly helpful include: the requirements regarding commissioning an affidavit, including affidavits of service; the use of virtual means to identify or verify the identity of a client; whether virtual means can be used to assess a client’s capacity; and, what are the best practices for using video conferencing in providing legal advice or services.
LawPRO is continuing to update avoidaclaim.com. Given that new claims reports continue to come in at pre-crisis numbers, lawyers must remind themselves that although the physical location of their practice may have changed, the level of service provided must not.
Hull & Hull LLP
If you are reading this blog, you are probably already aware of the comprehensive resources being provided by Hull & Hull LLP, which can be found here. If not, we are covering everything from estate planning to estate litigation, including the execution of wills and how to have litigious matters heard by presiding judges.
Ontario Bar Association
The OBA has set up a COVID-19 Action Centre. While helpful information continues to be provided, I find myself continually looking forward to their ‘mindful moments’ which arrive daily in my inbox.
Stay safe and wash your hands,
If you consider this topic interesting, please consider these other related sites:
Notably, individual returns, normally due on or before April 30, 2020 are now due on or before June 1, 2020. Payments due April 30, 2020 are due on or before September 1, 2020, with no penalty or interest being payable if payments are made on or before September 1, 2020. Installment payments due on a date before September 1, 2020 can be paid up to September 1, 2020.
Things are not so clear with respect to terminal tax returns for deceased taxpayers. Normally, these are due on April 30, 2020 if the deceased died between January 1, 2019 and October 31, 2019, and six months after death if the deceased died between November 1, 2019 and December 31, 2019. What is not entirely clear is whether these deadlines are also extended. Some accountants are advising to file and remit payment in accordance with the old deadlines until further clarification is given. Hopefully, this issue will be clarified shortly.
Please note that things change daily, and further clarification may be coming soon. If these deadlines may apply to you, or an estate that you are responsible for, please consult a knowledgeable accountant and/or monitor the CRA website.
Thank you for reading. Stay safe and healthy.
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:
The Law Society of Ontario (LSO) has issued a COVID-19 Response which is required reading for all members of the Bar. As we have noted in many of our blogs posted since the onset of the pandemic, the delivery of legal services requires us all to adopt a new normal. The LSO has provided guidance in its Response regarding the delivery of legal services remotely that would never previously have been considered other than in person. As the LSO notes: “This is an unprecedented situation and some flexibility may be required to ensure continuity of essential legal services without undue risk to public health.”
Commissioning of affidavits has always been one such task performed in person. The LSO has provided guidance on an appropriate departure from commissioning in the physical presence of the deponent. It is worth noting that s. 9 of the Commissioner for Talking Affidavits Act (“the Act”) only speaks of the commissioner having to be in the presence of the deponent (the requirement for “physical” presence being a best practice but not an essential element of the statute).
Accordingly until further notice and as a result of COVID-19:
- The LSO will interpret the requirement in section 9 of the Act that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the lawyer or paralegal to be in the physical presence of the client.
- Rather, alternative mean of commissioning such as commissioning via video conference will be permitted subject to management of risks associated with this relaxed practice including but not limited to: fraud, identity theft, undue influence, and capacity.
Virtual commissioning is a temporary measure that casts a burden on the lawyer to make extra enquires into the existence of one or more of these risks. The LSO sees the current circumstances as a regrettable opportunity for persons to attempt to commit fraud or other illegal acts. Lawyers and paralegals must accordingly “be alert to red flags in order to ensure that they are not assisting, or being reckless in respect of any illegal activity.” To protect against being an unwitting accomplice see the Federation of Law Societies’ Risk Advisories for the Legal Profession.
Thanks for reading.
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,
Many of us are familiar with the expression: “Time waits for no one.” We also previously blogged about the impact time has on all parties in litigation: “No one likes to see a limitation period applied to dismiss a claim.” (So says Justice Nakatsuru in the opening line of his decision in Sinclair v. Harris.)
In general, claims must be commenced in a timely fashion. If too much time passes–depending on the circumstances and nature of the claim–parties may be prohibited from commencing a lawsuit, or have their lawsuit dismissed, by what is known as a ‘limitation period’.
With the recent developments of COVID-19, however, the Lieutenant Governor in Council made an Order under s. 7.1 of Ontario’s Emergency Management and Civil Protection Act suspending limitation periods in Ontario. This suspension is retroactive to March 16, 2020. A copy of the Order can be found here.
What happens when the suspension is lifted? It will be interesting to see if limitation periods go back to existing the day this suspension is lifted, or if further legislation may be needed to deal with this issue. For now, it appears that “time” is waiting for everyone.
Thanks for reading!
The Ministry of the Attorney General (MAG) released a Notice this morning further elaborating on the declaration of a provincial emergency in relation to the 2019 novel coronavirus (COVID-19) and ,more particularly, its impact upon the courts.
The Notice states: “ To further protect the health and safety of all court users and to help contain the spread of COVID-19 , we ask members of the legal profession and members of the public NOT to attend court houses in person at this time, unless they are required to be in court for a hearing or to make an urgent filing in a civil, criminal or family matter.”
Notwithstanding the foregoing, the court continues to accept non-urgent matters by regular mail.
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,