In order for a Will to be valid, the testator must sign in the document in the presence of two witnesses. During the COVID lockdown, numerous jurisdictions, including Ontario, enacted emergency legislation permitting the virtual or video commissioning of Wills. These measures enabled the testator’s signature on the Will to be witnesses by people who were not physically present in the room with the testator.

While virtual Will commissioning in Ontario became permanent under s.4(3) of the Succession Law Reform Act,  not every jurisdiction has followed suit. The UK recently announced that the video or virtual witnessing of Wills legislation no longer applies, as this was a temporary measure to be used as a last resort, and is no longer required.

Lawyers in the UK reported that virtual Will execution made it more difficult for them to detect if the testator was being unduly influenced, and the UK has seen a noted increase in Will challenges in recent years. Between 2019 and 2020, there was 38% increase in the number of “caveats” filed to block probate, from 6,889 to 9,528. Between 2022 and 2023, 9,625 caveats were filed, which was the highest in the last five years. While the rise in estate disputes has been attributed to rising property values, and the increase in the popularity of “do it yourself” Wills, lawyers in the UK believe virtual commissioning has made it more difficult to spot and address lack of testamentary capacity, undue influence, and to ensure the formalities of execution are followed. Moreover, the mere fact that a Will has been virtually commissioned may raise suspicion and make it vulnerable to challenge.

In Ontario, there have been no such reports of increased estate disputes on account of virtual Will execution, and the ability to do so is here to stay. However, practitioners must still exercise their professional judgment to ensure that this method of commissioning is appropriate in any given case. While a licensee of the Law Society of Ontario must be one of the subscribing witnesses of a virtually executed Will, and all signatures must be contemporaneous, which add a layer of protection, lawyers must follow best practices to preserve the integrity of the process, including ensuring that the client has the necessary technological capabilities, and that there are no red flags with respect to testamentary capacity, duress, coercion or undue influence or fraud. Moreover, if a client is making unexpected or significant changes to their estate planning, including the removal of beneficiaries, a lawyer should proceed with caution if virtual execution is contemplated. If the issue is not resolved to the lawyer’s satisfaction, the lawyer should not proceed with the Zoom will, should proceed in person, or to decline to act altogether.  Otherwise, a potential Will challenge awaits.