In response to issues arising in the execution of Wills during the COVID-19 pandemic, the Ontario government introduced an Order in Council specifically dealing with the execution of Wills and Powers of Attorney. Ontario Regulation 129/20. made under the Emergency Management and Civil Protection Act provided that the requirement that a testator or witness be present in each other’s presence for the making of a Will or Power of Attorney may be satisfied by means of audio-visual communication technology, with certain restrictions. See our blog on the virtual witnessing of Wills and Powers of Attorney, here.
Under the Reopening Ontario (A Flexible Response to COVID-19) Act (“the Reopening Ontario Act”), Orders made under the Emergency Management and Civil Protection Act that have not been previously revoked are extended and continued under the Reopening Ontario Act. The extension is for a period of 30 days after the Order is continued, subject to further extension.
The new Order, Ontario Regulation 129/20 formerly made under the Emergency Management and Civil Protection Act, but now continued under the Reopening Ontario Act can be found here.
The Reopening Ontario Act received Royal assent on July 21, 2020 and came into effect on July 24, 2020.
The power to extend or amend an Order ceases on the first anniversary of the day orders are continued (ie. July 24, 2021).
This would mean that the virtual witnessing of Wills and Powers of Attorney is extended until August 23, 2020, with the government having the power to further extend the provisions.
We will keep you posted.
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As we know, due to the COVID-19 pandemic, Ontario has passed emergency legislation allowing for Wills and powers of attorney to be executed and witnessed virtually, and in counterparts. This legislation will remain in effect for the duration of the declared emergency. Although Premier Doug Ford recently announced a plan for reopening Ontario, the timeline for doing so is still vague, and it’s unclear when the emergency will be declared to be at an end. Once the emergency is over, the normal rules for execution of Wills and powers of attorney, as set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26, and the Substitute Decisions Act, 1992, S.O. 1992, c. 30, will once again govern how such documents may be validly executed.
Before coronavirus became such a pressing concern, there was some discussion in the United States, of allowing Wills executed electronically to be considered valid testamentary documents. According to this article in The New York Times, entitled “A Will Without Ink and Paper”, at the time the article was published in October 2019, some states already had laws to allow e-signatures on Wills, and others were looking to adopt similar laws this year.
In the US, the Uniform Law Commission has proposed the Uniform Electronic Wills Act, which is intended to serve as a model for states who wish to enact such legislation. The law would allow testators to complete the entire Will-making and execution process online, without a lawyer or notary present. There are already online services, currently serving states that already have laws allowing electronic Wills, which provide a platform for the creation of these digital Wills.
According to The New York Times article, the process of creating an electronic Will involves a testator creating a Will online, and then having a video-conference call with a notary. The notary will review the document, ask questions of the testator, notarize it, and send it back.
Although the concept of electronic Wills seems convenient, the costs may ultimately outweigh the benefits. As one lawyer quoted in the article states, signing a Will “is not like getting toilet paper delivered by Amazon instead of going to a supermarket…This is a solemn thing that people don’t do every day.” The “inconvenience” of consulting a lawyer, having a Will professionally drafted, and executed in the traditional way, will likely be worth the trouble for most testators, particularly when you consider that this is not a task that needs to be done repeatedly, at frequent intervals (like going to the grocery store to buy toilet paper).
The article mentions a number of points as to why electronic Wills may not be such a great idea. Without a lawyer’s involvement, there is a heightened risk for undue influence to go undetected. Testators with significant assets that may be structured in complicated ways, or who have unique family situations, such as a blended family, are not likely to be well-served by the creation (let alone the execution) of a Will online, without estate planning advice from a lawyer.
Desperate times call for desperate measures, and it is helpful to have alternate methods of executing Wills and powers of attorney in these unprecedented times. But when life goes back to normal, I think we can be comfortable with the return to the “old-fashioned” way of executing Wills and powers of attorney. Although some may consider the process to be cumbersome, the added protection for testators, and the comfort of an estate plan that takes into account each testator’s unique situation, is worth the price.
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If you are a subscriber to the Hull & Hull LLP Toronto Estate Law Blog, you know that I am a relative newcomer to the blogging world. What you couldn’t know is that I’m also a late convert to all things wireless and virtual.
My life is, for the most part, hard-wired. I still have a land line. I’m ashamed to admit that my printer is connected to my laptop by a cable. I insist on sending old-fashioned ‘snail-mail’ letters to friends and family, and when I’m throwing a party, I send a paper invitation!
I could go on ad nauseum, but you get my point: my life is not really organized by way of wireless technologies and virtual realities.
However, I’m intrigued by the idea of organizing my life, at least my work life, virtually. I was, therefore, drawn to the article in the September 3, 2010 issue of Lawyers Weekly with the above-captioned title.
The article was written by Luigi Benetton and he suggested that adding a virtual office to the physical office can, potentially, expand the market of a firm. According to the American Bar Association eLawyering Task Force, a virtual firm is “characterized by access by the firm’s clients to a password protected and secure web space where both the attorney and the client may interact and legal services are consumed by the client.” This type of lawyering, where the traditionally face-to-face meeting is not always necessary, certainly does create an additional medium for firms to connect with clients.
Hull & Hull LLP joined this virtual world in June 2008 when it launched an e-office on Second Life, a popular internet based virtual world created entirely by its residents. The office is used as an alternative medium to provide useful information for those seeking our firm’s expertise.
While there are benefits of elawyering in terms of client service, there are pitfalls that make the virtual office a difficult reality. Our managing partner, Suzana Popovic-Montag, noted in the above-captioned article that elawyering is not well suited for every area of law and, by way of explanation, she noted that elawyering is “more difficult when you have litigation matters. There’ll still be examinations for discovery and court appearances, plus law society requirements to prove that clients are who they say they are.”
In the end, it seems that my hard-wired life style is not at risk of becoming obsolete any time soon. Rather, virtual mediums are proving to provide our firm with an additional platform for clients to connect with us and access important legal services.
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Kathryn Pilkington – Click here for more information on Kathryn Pilkington.
I’m sure there are a few people who are holding out and refuse to join facebook, or some other virtual world. Yet for the majority, checking online accounts is merely part of an everyday routine. What happens when you are no longer around to check these accounts? This may seem like a trivial factor when dealing with the loss of a loved one, but seeing posts on a facebook wall belonging to a recently deceased family member can be extremely painful.
In a recent episode of The National, our own Ian Hull articulated that an online presence is something which we increasingly need to consider when dealing with Estates. This presence can cause difficulties for Estate Trustees. Online accounts generally require passwords; passwords which are not necessarily shared with anyone. In fact, recently, I signed up for an online account and was specifically instructed not to share my password. Then the dreaded words appeared on the screen: ‘Please pick a question which will be provided to you in the event that we need to verify your identity.’ I had to pick and answer a question three times before my password could be set. I’m not sure if the people closest to me would know the answers to those questions. How could they, it took me a while to think of questions I was certain I would remember the answers to. What would happen if my family had to access my accounts and I wasn’t there to help them?
This issue was explored in a recent article in the New York Times. The article suggests naming a digital executor to get around the problem of passwords. I’ve yet to explore this personally, but it is certainly intriguing. This concept is new and how it will play out in estate planning, administration and litigation is yet to be seen. I’m not sure I’m willing to give my passwords to a complete stranger at yet another website, but at the very least, I’ve reconsidered sharing some of my more obscure passwords with my family. Something to think about.
Nadia M. Harasymowycz – Click here for more information Nadia Harasymowycz.