Tag: Affidavit of execution

18 Mar

Execution of Wills during COVID-19

Ian Hull Estate Planning, In the News Tags: , , , , 0 Comments

Like many of you, we are struggling to figure out ways to get our clients’ Wills executed during this period of social distancing.

The Problem

Ontario has very strict rules on how a Will has to be executed in order for it to be valid. Unlike many other Provinces, Ontario does not have “substantial compliance” legislation that allows a Court to validate a Will that has not been duly executed.

These rules cannot be changed except by legislative action. The Succession Law Reform Act would have to be amended. The Law Society of Ontario is not able to give permission to override these requirements.

The key requirements are that:

  1.   The Will-maker must sign or acknowledge his/her signature in the presence of two witness; and
  2.   Both witnesses must sign in the presence of the Will-maker and each other.

The “presence of” requirement is generally regarded as having to be in the same room and be able to see one another signing the Will.

We have almost always resisted sending the Will out to be executed by the client without our presence for fear that it would not be executed properly. However, under the current circumstances, we are adopting a process for our clients who need to have their Wills signed.

Protocol for Remote Execution

Firstly, we explain to the client the strict rules for signing the Will and that the Will won’t be valid unless these rules are followed exactly.

We also remind them of who cannot be a witness:

  1. A Beneficiary (even a contingent beneficiary);
  2. The married spouse of a Beneficiary; or
  3. A person under age 18.

A person who is named as an executor, but not a beneficiary, can be a proper witness.

If the client wants to proceed on their own, we limit our retainer so that we are not responsible to see to the due execution of the Will.  Here is a link to our limited retainer.

We’ve created this Client Will Signing Checklist document that we send to the client and ask them to complete during the Will signing and send back to us. Here is a link to the document.

Some firms are asking their clients to video the Will execution process in such a way that all three parties, the Will-maker and the two witnesses are visible. The client can send a copy of the video for the lawyer’s files. Of course, this is not required, but may put you more at ease when you see that they did it correctly.

The Affidavit of Execution can be prepared and sworn after the signing.

Once we are able to interact in person, we are recommending that our clients come in to re-sign their Wills at our office, just to be on the safe side.

Feel free to email either of us with any questions, comments or suggestions at jordan@e-stateplanner.com or ihull@hullandhull.com or at 416-369-7826.

Thank you for reading.

Ian Hull and Jordan Atin

25 Mar

Applying for Probate

Hull & Hull LLP Estate & Trust, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Podcasts, PODCASTS / TRANSCRIBED Tags: , , , , , , , , , , , , 0 Comments

Listen to Applying for Probate

This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the applying for probate. They discuss some of the ways that estate administrators can simplify the process.

Comments? Send us an email at hullandhull@gmail.com, post a comment on our blog at http://estatelaw.hullandhull.com/ or leave us a message on our comment line at 206-457-1985.

READ MORE

01 Jan

The Process of Administering an Estate – Hull on Estate and Succession Planning Podcast #93

Hull & Hull LLP Executors and Trustees, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Podcasts, PODCASTS / TRANSCRIBED, Wills Tags: , , , , , , , , , , , , , , , , , , , , , , , , , 0 Comments

Listen to The Process of Administering an Estate

This week on Hull on Estate and Succession Planning, Ian and Suzana  talk about the first, pre-probate stages of administering an estate.

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

CATEGORIES

ARCHIVES

TWITTER WIDGET