It is no surprise that many people are contemplating their own mortalities during the COVID-19 pandemic and wish to make a will. However, the existing laws are particularly unsuited to making wills in a time of social distancing; it will usually be impossible or unsafe to have two people witness the signing of the will in person. Helpfully, the Ontario government has now stepped in to allow for virtual witnessing of wills (and powers of attorney) during the pandemic.
In order to be valid, a non-handwritten will must have two witnesses physically present to see the testator sign the will (except for status “Indians”). Additionally, any gift in a will to any witness is presumptively void. It appears that most people are only sheltering in place by themselves or with one other adult – meaning that there would not be enough viable in-person witnesses available. For obvious reasons, it would be unsafe for lawyers to attend in person to witness wills.
The Ontario government has now addressed this problem via a regulation under the Emergency Management and Civil Protection Act (in our brave new working-from-home world, the regulation is not yet officially published but was tweeted out by the Attorney-General from his 33% charged iPhone).
Pursuant to this regulation, during the duration of the current emergency, wills and powers of attorney can now be witnessed remotely. There are two caveats. One, the technology used must allow the participants to see, hear and speak with each other in real time. Two, at least one of the witnesses must be a lawyer or a paralegal.
It is vitally important that the witnesses carefully go over the will with the testator. While cumbersome, they should ensure that they are reading from the version that the testator has (rather than a version that the witnesses may have printed off) to ensure that the correct version is being signed. As always, lawyers witnessing wills should be alert to issues with testamentary capacity and undue influence and probe appropriately.
These are difficult times, but it is heartening that the government is listening to issues that are arising and addressing same promptly.