If you were in the midst of preparing an estate plan before social distancing became the new normal, you may have questions about what the outbreak means for your planning. Alternatively, perhaps the outbreak has highlighted for you just how quickly life’s circumstances can change and making a will and powers of attorney has become a higher priority on your to-do list. This blog will answer questions about making a will and powers of attorney during these uncertain times.
Meeting with a Lawyer
Most lawyers continue to work, albeit remotely, during the outbreak. Firms have put into place protocols for working from home and technology allows lawyers and clients to continue to connect. It is essential that lawyers continue to be able to serve clients during the outbreak, particularly where estate planning is concerned.
The Law Society of Ontario has provided information to lawyers about verifying client identification during the outbreak. If you are meeting with a lawyer for the first time or providing a retainer, you should expect that your lawyer will want to have a video conference with you to verify identification. They may also request that you provide a high resolution copy of your ID in advance as well.
Although lawyers and clients both prefer to meet in person, either or both may find meeting while maintaining social distancing to be a challenge. Video conferencing is a great tool to continue to connect with clients; lawyers need to continue to be vigilant, however, for issues of capacity and undue influence. It is important that only the client(s) providing instructions for a will are present when the instructions are being given.
Executing Your Will
Once your documents are drafted and you are ready to sign, care must be taken to ensure that documents are executed in a manner that meets the strict requirements under the Succession Law Reform Act. The Act requires that a will be signed by the testator, in the presence of two witnesses and that those two witnesses must also sign the will, in the presence of each other and the testator.
There are also individuals who cannot act as witnesses, namely, a beneficiary, the spouse of a beneficiary (married, not common law) and a person under the age of 18.
Given that the signing requirements for estate documents is very technical and doing it correctly is crucial to the validity of the documents, lawyers generally prefer to have wills signed in their office. This also allows a lawyer, if a documents is later challenged to confirm that the client knew what they were signing and was signing so voluntarily.
During this period of social distancing and self-isolation, these execution requirements will for some lawyers and clients pose a challenge. The witnesses must be in the same room as the testator and must not be one of the individuals listed above. In these exceptional times, however, wills are still needed and can still be signed with proper social distancing and other precautions. Your lawyer can send you the documents and provide you with clear instructions on how they must be executed. If you are a member of the population who is particularly vulnerable to COVID-19, and you are concerned about your ability to have witnesses present, you should speak with your lawyer about what options are available to you to ensure your will and powers of attorney are properly executed.