This blog was written by Lara Besharat

As the pandemic trudges on, jurisdictions are bowing to pressure, allowing for what was once a rigidly fixed process to be done virtually. In Canada, a will historically required the physical presence of two witnesses alongside the testator to be considered valid. However, due to social distancing guidelines, changes have had to be made. One by one, Ontario, Alberta, British Columbia, Manitoba, Nova Scotia, Newfoundland and Labrador, Quebec, and Saskatchewan have begun allowing, in some capacity or another, the option to virtually witness a will. Some places, like Alberta, have even made the change to their provincial legislation a permanent one.

Many would argue that this is long overdue, that our need for physical witnessing and a wet signature is outdated given our increasingly technology-driven world. And undoubtedly, there are benefits to virtual witnessing; first and foremost, its accessibility. For some of our most vulnerable populations—those that, at this time, cannot easily leave their home or be near other people—virtual witnessing affords them the opportunity to create or update their will. Provided they have the means to make a video call, they can have their will witnessed remotely, eliminating the potential dangers of physical proximity to others.

However valuable this change is, though, there are also clear risks to this method of witnessing. Its value, in the wrong hands, can also be its detriment. During this time, many have chosen to self-isolate with family or close friends, and for most, I’m sure this has been a comfort. Unfortunately, it also risks fostering an environment that allows coercive and manipulative acts to not only thrive, but go completely unnoticed. Particularly for high risk individuals that remain in almost complete isolation, this has been a lonely and mentally taxing time. To then, in that mindset, be sheltered in one location amongst the same people, day in and day out, reliant for basic needs like food to be brought to you from the outside world; it creates an inescapable bubble operating on a power imbalance. With constant pressure, either subtly or by force, and no outside party around to catch red flags, these individuals are at greater risk for being unduly influenced into decisions they wouldn’t otherwise make. Add to that the constant news cycle of COVID-19 horror stories and daily death figures highlighting the need for an up-to-date estate plan, and the risk of being influenced into creating or changing a will to the benefit of those you are isolated with is further elevated.

Amplifying this problem is that a safeguard previously used to spot indications of undue influence—the need for two non-beneficiaries to be physically present with the testator when a will is validated—has now been removed. Two witnesses are still required, of course, but they can witness these changes via video conference, making subtle red flags harder to spot.

Still, I would not suggest that the move towards virtual witnessing should be abandoned immediately, or even post-pandemic. Rather, I would focus on precautions that can be taken to limit acts of undue influence from progressing. Being limited to virtual communication can certainly make assessing capacity and picking up on unusual patterns of behaviour a challenge, but not impossible.

So that even subtle indications of undue influence don’t go unnoticed, several law firms have outlined some best practices to employ. If meeting via video conference:

• Pay attention to the way the testator is responding to you. Are they fidgeting a lot? Are they looking off camera for answers? Are they allowing someone else to speak for them?
• Question if the meeting and/or video call was set up by the testator, or by someone else.
• If there are other people in the room, request to speak to the testator alone and consider having them pan their camera around the room or widen the scope of view, so that you can verify that they are indeed on their own. Also, ask them to close the door.
• Ensure the video’s image and audio are clear on all sides.
• Observe the testator’s appearance, as well as their environment. Do they seem well taken care of?

During the meeting, it also helps to:

• Learn about any potential family conflicts and/or sudden reconciliations.
• Explore the relationship between the testator and the people they are with in isolation.
• Ask pointed questions. There’s no need to interrogate the testator, but be vigilant. Why are they making changes now? Does it have to do with the pandemic? If they are making a significant change to a previous will, what is their reasoning for it? Why have they chosen their beneficiaries?

All in all, just generally try to get a clear picture of the testator’s state of mind and decision-making abilities. Look out for unusual patterns of behaviour or inconsistency, as this may indicate diminished capacity, or suggest responses are being made under conscious or unconscious duress.

Ultimately, while a necessary sacrifice, social distancing and self-isolation have created a potential breeding ground for undue influence, intensified by the limits of virtual communication. Therefore, whether you are dealing with a client in a professional capacity or with a vulnerable family member or friend in a personal capacity, it’s vital to be attentive, and most importantly, to always stay alert.