Can I Get a Witness? Will Executions During COVID-19

In the area of wills and estates, the new norm of physical distancing and its incompatibility with rigid Will execution requirements has forced lawyers to look to creative ways to execute a Will. On April 7, 2020, an emergency order was made allowing for the virtual signing of a Will during the current state of emergency in Ontario.[1] Otherwise, a valid typewritten Will is required to be signed by the testator in the physical presence of two witnesses, each of whom must then attest to the signing in the physical presence of the testator.[2] Generally, neither witness can be a beneficiary or the spouse of a beneficiary.[3] Ontario courts have no authority to validate a Will that fails to comply with these strict legislative formalities so these onerous witnessing requirements have presented practical challenges during this time of self-isolation. This post discusses the novel approach of virtual signings and briefly outlines a number of additional strategies that have been considered in executing Wills while maintaining physical distancing, highlighting the merits and pitfalls of each.

1. Virtual Signing

The recent emergency order permitting the virtual signing of a Will is a timely, though temporary, measure to provide testators with a practical and safe method to execute their Wills during the COVID-19 crisis. Virtual signings may now be conducted by means of audio-visual communication technology, such as FaceTime or Skype, where the participants can see, hear and communicate with each other in real time. The new emergency order authorizes Will executions in this manner thereby eliminating the need for the parties to be physically together, although it imposes an additional requirement that one of the witnesses be a licensed member of the Law Society of Ontario. This change, while not retroactive, is no doubt a welcome solution for many who are seeking to execute their Wills at this time.

Wills cannot be signed in counterparts since there is only one valid original Will. As a result, the mechanics of a virtual execution must be carefully considered, but would appear to be satisfied using the following approach: After the testator has signed the Will during a real time audio-visual call with both witnesses on the call, the signed Will could be couriered by the testator to one of the witnesses who would sign the Will in the virtual presence of the testator and the other witness, followed by the same process for the second witness to sign the Will, there being no requirement that a Will must be signed and witnessed all in one sitting. However, the delay between signings may be undesirable, especially if the testator is gravely ill. There should also be safeguards in place to ensure accurate identification of the actual document the testator signed.

Despite the flexibility afforded by this virtual approach, not everyone will have easy access to the technology necessary to effect a Will execution by these means. Accordingly, other options may need to be employed, such as those outlined below. 

2. Porch Signings

Some lawyers have used “porch signings” where the testator signs the Will inside the home near the front door or window, while witnesses observe and then subscribe the Will outside of the home, all while maintaining a physical distance from one another, using appropriate personal protective equipment, and following other precautions. This method fulfils the formal requirements for execution in Ontario. However, it can be impractical or impossible in certain situations since it still requires the physical presence of two witnesses. For example, many long-term care facilities and hospitals now have a ‘no visitors’ policy in place that would prohibit any witnesses from attending a Will signing, even from a distance.

3. Holograph Wills

A holograph Will, being a Will that is wholly in the handwriting of the testator and signed by him or her, is a valid form of Will in Ontario, without the need for a witness.[4] It may be an appropriate option in an emergency, where the alternative would leave an individual with no Will at all. However, holograph Wills are almost never the ideal estate planning strategy, given the drafting risks and their limitations in addressing complex situations. Moreover, for those who are sick, elderly or otherwise physically incapable, the prospect of writing out one’s own Will may be impractical or unrealistic.

4. Incorporating a Typewritten Will within a Holograph Will

Generally, an unattested document can be incorporated into a Will under the doctrine of incorporation by reference. If properly done, the contents of the incorporated document are deemed to be legally binding as if they were written into the Will itself. Theoretically, the testator could incorporate a typewritten Will containing comprehensive and carefully drafted terms into the holograph Will. However, current caselaw in Ontario would seem to make this option unavailable, despite earlier favourable commentary to the contrary.[5]

5. Execution Under Video Supervision of a Lawyer

Some lawyers have supervised (as opposed to witnessing) Will signings over a video communication platform. While Ontario law does not require a lawyer to supervise, or be present at, a Will signing, doing so can help to ensure that execution requirements are satisfied, that there was no improper or undue influence exerted, and that the testator had the requisite capacity to sign the Will. This method eliminates the need for physical proximity between the lawyer and testator, but witnesses would still need to join the testator for the signing. As the witnesses would likely be individuals outside of the household (such as neighbours), this method still conflicts with physical distancing practices and could even violate the recent emergency order prohibiting social gatherings of more than five people.

In this time of uncertainty, many have understandably turned their minds to ensuring that their affairs are in order. Some urgently require a Will, but have neither time nor opportunity to do so by executing a Will pursuant to strict statutory procedures. Ontario’s new virtual option will therefore assist many, as will the other options discussed. However, given the critical role of one’s Will as part of a sound estate plan, it is important to consult a qualified legal professional for advice based on the particular circumstances. 

[1] Order in Council made April 7, 2020 pursuant to s.7.0.2(4) of the  Emergency Management and Civil Protection Act, RSO 1990, c E.9.

[2]Succession Law Reform Act, RSO 1990, c S.26, s 4 [SLRA].

[3] SLRA, s 12(3).

[4] SLRA, s 6.

[5] See for example, Re Dixon-Marsden Estate (1985), 21 ETR 216 (Ont Surr Ct), in which the court indicated, in obiter, a willingness to accept a holograph Will that incorporates by reference a typewritten and unsigned formal Will. However, in the more recent case of Facey v Smith (1997), 17 ETR (2d) 72 (Ont Gen Div) the court in obiter wrote that a holograph Will could not incorporate by reference a typewritten Will on the basis that the Will would not be wholly handwritten by the testator.

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