As a surge of Canadians engage in estate planning in response to the coronavirus outbreak, an Ontario court will hear a case next week to determine whether a will that was witnessed online was properly executed.
The court has agreed to consider the case on an urgent basis for a married couple in their 80s who are avoiding contact with others out of concern for their health. It is part of a growing call in Ontario's legal community for the option to use virtual tools to witness the signing of wills, particularly as social distancing makes it difficult to hold in-person meetings.
For a typed will to be valid, two people must witness it being signed and neither witness can be a beneficiary or spouse of a beneficiary. Lawyers say Ontario law takes a strict approach to this rule, unlike some other provinces where there is more flexibility. These formalities are challenging to meet when most people are isolating alone or with family members and keeping their distance from others.
Lawyers in Ontario, Quebec, British Columbia and Alberta, all provinces that have been hard-hit by the spread of COVID-19, say they have seen a spike in recent weeks in requests for new or updated wills, along with related documents such as powers of attorney. Inquiries have come from elderly clients and front-line health-care workers as well as healthy adults who suddenly have free time.
"I'm busier this month than I've been all year," said Kavina Nagrani, who is counsel at Loopstra Nixon LLP in Toronto and the lawyer who filed the court application. "People have more time on their hands, they're sitting at home, there's a pandemic and unfortunately it makes people think about sickness, incapacity, death."
Late last week, Ms. Nagrani completed new wills for her elderly clients and she and her legal assistant witnessed the pair sign the documents over the online video-conferencing service Zoom, recording and saving a copy of the meeting. As the couple initialed and signed each page of their wills, they held them up to show the camera. Ms. Nagrani filed an application with the Ontario Superior Court of Justice on Tuesday, asking the court to declare that the procedure she used meets the requirements under the law. She said the court – which is is closed except for emergency matters – has agreed to hear the case next week.
"The law was always antiquated, but now I think we're seeing the extent of all of those problems," says Patrick Hartford, chief executive and founder of NoticeConnect, a Toronto-based company that publishes estates-related public notices online. NoticeConnect started a petition for the Ontario government to change the law to allow virtual witnessing of wills. As of Thursday, the petition on Change.org had more than 1,000 signatures and Mr. Hartford says he plans to send it to Ontario's Attorney-General, Doug Downey.
Online will-making startup Willful.co has seen a month-over-month increase in sales of more than 40 per cent from February to March, according to CEO Erin Bury, with many customers asking why the technical requirements around printing and witnessing wills still exist in today's virtual age. "This is something that consumers are demanding," she said. "It hasn't been prioritized, but I think [COVID-19] has really changed all of that."
Jessica Feldman Chittley, an estates law partner at Bales Beall LLP in Toronto, says the formal requirements exist to give witnesses an opportunity to assess the mental capacity of the person making the will and ensure they are not under undue pressure or duress. She helped a client execute a will recently by going to their backyard, using gloves and keeping her distance and witnessing the signing through a window along with a neighbour.
But that's not possible in all instances, Ms. Feldman Chittley says. "The legislation works most of the time, it's just not working right now. It's not working for our most vulnerable individuals."
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Both B.C. and Alberta have "rectification" provisions in their estates legislation that allow courts to declare a will valid even if all the formal requirements aren't met, as long as it can be shown that it reflects the will-maker's true intentions.
Helen Low, an estates law partner at Fasken Martineau DuMoulin LLP's Vancouver office, said she recently advised a client with COVID-19 on how to execute an updated will. "We make it clear [in the writing of the will] that this is the settled testamentary intention of the person and they are signing it without witnesses because of the requirements to self-isolate," she said, adding that she expects a court would declare such a will to be valid using the rectification power.
Farha Salim, a partner at Field LLP in Calgary, said she has been trying to come up with creative ways to comply with formal requirements, noting that even though the rectification clause exists, it does create a need to make a court application after the fact.
In all provinces, people can make valid "holograph" wills in which they hand-write the entire document and sign it without the need for a witness. Lawyers say that's a good option for simple wills or short amendments to existing wills, but it can be a challenge for seniors without adequate strength and impractical for complicated estate planning.
In Quebec, a third option exists called a notarial will, in which a notary witnesses the signing and the document does not later need to go through the probate system, according to Nathalie Marchand and Troy McEachren, partners at Miller Thomson LLP in Montreal.
In response to the COVID-19 crisis, the Quebec government last week passed an emergency decree allowing notarial documents to be signed virtually, a move that gives Quebec residents the unique option to sign or update wills "from the comfort of your home," Mr. McEachren said.
Originally published by The Global and Mail, 22 April 2020
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