This blog was written by Paula Lester – Estate and Trust Consultant with Scotia Wealth Management
It’s the irony of today’s situation: more and more individuals are turning their minds to their estate plans in light of our current pandemic, but getting new Wills drafted and executed right now has become an increasingly difficult endeavour. As a result, we find ourselves trying to get Wills drafted and signed under unideal circumstances, to say the least. Shortcuts are being taken where we see no other option:
- Some clients are being told to do a holographic Will
- Lawyers are being retained and taking instructions over the phone
- Meetings, including signing meetings, are taking place virtually
and so on…
While sometimes necessary, these shortcuts are not without risk. What are these risks, and how can we protect against them?
There are two main types of risks: first, that the Will itself will not be valid; and second, that the estate plan will be incomplete in some way.
A Valid Will
The law on the validity of Wills is very strict. One of the requirements – that the Will be witnessed by two individuals – can be impossible to fulfill for individuals who are quarantined or otherwise unable to be around others. Indeed, an Ontario Court will soon be deciding whether a Will that has been witnessed online is valid.
There are other reasons a Will may not be valid, such as where there are capacity issues or where there has been undue influence. The current inability of lawyers to meet with clients face-to-face, and the taking of instructions by phone decrease a lawyer’s ability to note and guard against such possibilities. This may lead to the challenge of many Wills drafted during this time, particularly if the estate plan changes dramatically.
A Complete Estate Plan
Even if the Will itself is valid, there is an increased risk that the estate plan may be lacking in some respect. Usually, a lawyer will verify the ownership of assets and other important financial information before drafting a Will, to ensure that the Will gives proper effect to the client’s wishes. Increased time pressures coupled with difficulties in obtaining documents may result in a lack of such verification.
Conversely, an estate plan may hinge on more than just an updated Will; for example, beneficiary designations or share structures may need to be changed, and such actions may also be delayed due to the practical difficulties we are facing. If these steps are not followed through before the testator passes, this could also give rise to an undesirable estate distribution.
So what can we do?
Individuals should work closely with their lawyers to decide what, if anything, should be accomplished at this time. Depending on the situation, one or more of the following can help to stem risk:
- Take the time needed to do the deep discovery with your lawyer so that your estate plan is complete.
- If your current Will is acceptable, consider first whether it actually needs to be updated at this time.
- Where possible, meet with your lawyer virtually by video as opposed to just meeting by phone.
- Follow your provincial execution requirements for your Will.
- Engage other professionals close to you (such as your investment advisor) and put them in touch with your lawyer to provide support to the estate planning process.
- Still try to provide all documents requested by your lawyer, even if it means scanning or mailing them.
- Your lawyer should take careful notes throughout the whole process, particularly if your updated estate plan varies widely from your previous one.