During the Coronavirus pandemic (COVID-19), many of us are reflecting on whether our financial and family affairs are in order. Those whose affairs are in order take great comfort knowing that, if something were to happen to them, their family would be taken care of. One of the most important documents to have and keep up to date is a will. Social distancing obligations can complicate matters but they should not stop you from putting a will in place or updating your planning today.1
The first step is to review your existing will to see if it still expresses your wishes. Ask yourself – has a child or grandchild been born or moved to the US? Have you recently been married or divorced? Do you have someone who is financially dependent on you? Are the named liquidator(s) or executor(s) and/or guardian(s) still the best choice?
If a new will or will changes have been on your "to-do" list, this is the time to speak with your estate planning lawyer. While respecting the obligations of social distancing, we are working remotely and able to respond in a timely and efficient manner.
How to sign
With social distancing obligations in force, we have to be careful and creative when signing a new will or a codicil, while still complying with the rules which govern formal validity.
Codicil
Some of the changes to a will may be minor and can be easily dealt with in a codicil, which is an addition to an existing will. In some provinces, you have the option of preparing a "holograph codicil". You can prepare a holograph codicil while you are at home. A holograph codicil is essentially an addendum to your will that is written entirely by hand, dated at the top, and signed at the end. Make sure that you send a scan or even a picture of the codicil to your estate planning lawyer to make sure that all is in order and keep it in a safe place along with your other important documents. Your Miller Thomson trusted advisor can help you prepare your codicil to ensure it meets your objectives while at the same time ensuring that the remainder of your will remains in force. We can even do a video call with you to help you through the entire process.
In certain provinces such as British Columbia, holograph wills are not valid. However, there are other ways in which you can have a document that does not meet the formal validity requirements declared fully effective as a will through an order of a court. We would be happy to consider your specific circumstances and make recommendations in this regard.
In Quebec, the government has passed an emergency decree permitting notarial documents to be signed using technology rather than in person.2 Once the Chamber of Notaries provides more details it should be possible to sign a notarial codicil from the comfort of your home.
A new will
If the changes that you would like to make are significant or if you do not yet have a will in place, you will need to sign a complete will. In this case, it might not be practical to write it entirely by hand. Your Miller Thomson trusted advisor can help you with preparation of this will. Once prepared, most of us have home printers so we can easily print a complete will. Signing the will is a little more complicated. In all provinces, a printed will has to be signed by the testator in the physical presence of 2 witnesses who then immediately sign the will. Unfortunately, modern technology allowing electronic signatures and videoconferences cannot be relied on when signing wills except in Quebec once the Chamber of Notaries issues directives as mentioned above. An old fashioned face to face signing is still required. This can prove to be very difficult and potentially dangerous during a pandemic.
If you are social distancing with adult family members who are not mentioned in the will, then they can act as witnesses. If not, you will need to locate two people who can act while practicing proper social distancing and taking some simple but important precautions.
A word of caution, making changes by writing over or adding paragraphs by hand to an existing will should not be done. These changes are generally not effective and can lead to confusion and even litigation. A call to your Miller Thomson trusted advisor can help you find the right solution for you and your family.
Footnotes
1 Please see our recent publication on the importance of maintaining an up-to-date estate plan: " Turning our minds to estate planning and the importance of maintaining an up-to-date estate plan"
2 Ministerial Order 2020-010 of the Minister of Health and Social Services dated 27 March 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
