Thanks to the swift response of the Attorney General, Wills and Powers of Attorney can now be witnessed in counterpart.
The new emergency Order now confirms that a Will and Power of Attorney can be signed and subscribed by witnesses on separate documents in counterpart.
By using video conferencing and counterpart, wills and powers of attorney can be fully executed remotely, giving immediate validity to the documents. Previously, all three signatures (the testator/grantor and two witnesses) had to be on the same document. That required the couriering of the document around for up to three separate signing ceremonies.
You can find more details, our thoughts for the process for executing in counterpart and an updated execution checklist on the Hull e-State Planner Blog (click here)
The updated checklists and resources for your consideration can also be downloaded here:
- WILL EXECUTION IN COUNTERPART CHECKLIST (LINK TO CHECKLIST)
- POA EXECUTION IN COUNTERPART CHECKLIST (LINK TO CHECKLIST)
- AFFIDAVIT OF EXECUTION (LINK HERE)
- ATTESTATION CLAUSE (LINK HERE)
As always, we welcome your comments and suggestions.
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,
Yesterday, I attended at a seminar put on by the Law Society of Upper Canada entitled “Practice Gems: The Administration of Estates 2011: Avoiding the Pitfalls”. (There is a repeat performance scheduled for October 31, 2011: see details here.)
One of the presenters was Clare Burns. She has prepared an excellent checklist for solicitors advising estate trustees. The checklist covers topics such as the first interview with the client, reviewing wills, codicils and affidavits of execution, preparing and delivering initial report to the client, determining the estate assets and liabilities, applying for the Certificate of Appointment, realizing and distributing the estate, and preparing the final report to the client. Under each heading, there are detailed descriptions of matters to be considered.
Ms. Burns has advised that she hopes to have the checklist available on the LSUC website shortly.
Solicitors are encouraged to download the checklist, and personalize it and expand to it according to their needs and experience.
The benefits of using a good checklist cannot be overstated. They are an essential tool in any practice.
Thank you for reading.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
Listen to Will Challenge Litigation – Part 1
This week on Hull and Estates, Ian and Suzana kick off their new video format.This podcast is an audio version of the video podcast that is available on YouTube here: http://www.youtube.com/watch?v=udEcTpLFIkk
This week’s episode also marks the beginning of a new segment that tackles Will Challenge Litigation step-by-step.
Listen to Calculating Compensation
This week, Ian and Suzana discuss the number of emails they received last week about cross-reference analysis and compensation. Ian references 5 cases that are important to this subject:
1. Logan vs Laing – Ontario Court of Appeal
2. Toronto Railway Trust
3. Re. Knoch (1982)
4. George William Trust
5. Re. Jeffrey
They explain and continue talking about calculating compensation and how to audit the claim for compensation.
Listen to Dealing with Estate Planning
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss dealing with estate planning and encouraging everyone to draw up a will.
Listen to Valuations and Appraisals
Ian celebrates the 100th episode of Hull on Estate and Succession Planning.
He discusses the question of valuations and appraisals and how these affect estate mediation.
Comments? Drop us a line at 206-457-1985 or send us an email at email@example.com.
Listen to Pre-probate Checklist
They then wrap up their ongoing discussion about some useful steps to remember when administering an estate.
Listen to Asset Particulars
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the importance of keeping track of asset details.