All About Estates

The How To’s of “Virtual Commissioning” as a result of COVID-19!!

Today’s blog was written by guest blogger, Tracy Parkinson, law clerk in the Private Client Services group of Fasken LLP.

By now, I expect the general consensus among us is that we’ve heard enough COVID-19 related information to last a lifetime.  I know I have, but in the meantime life goes on!

For now, while in person face to face meetings are not possible or recommended and proposed changes to the Commissioners for Taking Affidavits Act (the “Act”) permitting Virtual Commissioning has not yet been implemented, we have been left to brainstorm strategies to assist us to navigate through this difficult situation ourselves.  Although available information seems to be a moving target, to date, the following guidance has been provided.

The Superior Court of Justice (the “Court”), Commercial List and  Civil and Family, has advised that s. 9 of the Act will be interpreted to include that every oath and declaration normally required to be taken by a deponent in the presence of a commissioner or notary may be done via video conference, “Virtual Commissioning”.  In addition, the Court will accept the filing of unsworn affidavits so long as a sworn affidavit is provided prior to, or at the hearing, or the affiant is available at the teleconference to swear the contents.

The burning question now is, what are the logistics to this practice?  The changes previously contemplated to the Act provide that while using audio-visual technology (Skype®, FaceTime®, etc.), the commissioner or notary public directs the client to sign the document, which is visible to the commissioner or notary public thorough the video, and then the client returns the original executed document to the commissioner or notary public, who then signs the jurat.  Alternatively, the client and commissioner or notary public log into the same platform to view and electronically sign the same document simultaneously.

However, it is important to be mindful to mitigate the risks associated with this practice as it may be an opportunity for illegal activity, i.e. fraud, identity theft, capacity, undue influence, etc.

I haven’t had an opportunity to virtually commission yet, but I expect it won’t be long before I do.  In the meantime, I would love to hear about your virtual commissioning experiences when you have a few minutes at: tparkinson@fasken.com and maybe I will share those in a future blog.

Stay home and stay healthy!

About Corina Weigl
Corina Weigl is a partner in the Trusts, Wills, Estates and Charities group at Fasken, a leading international law firm with over 650 lawyers and 9 offices worldwide that offers comprehensive estate planning, estate administration, personal tax planning, charitable giving and estate litigation services. Email: cweigl@fasken.com

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