Putting a Will Together During Covid-19 (or Virtual Executions, Part 2: Signing in Counterparts)
In our previous post dated April 12, 2020 (see: “Can I Get a Witness: Will Executions During Covid-19”), we discussed various methods for executing Wills during the current state of emergency in Ontario, while still following recommended physical distancing practices. In particular, we highlighted the new method of “virtual signings”, authorized by an order in council made on April 8, 2020, which permits the testator and witnesses to participate in a Will execution through audio-visual communication technology that allows them to see, hear and communicate with each other in real time. This approach now satisfies the statutory formalities for proper execution, without requiring all the participants to be physically present at the same time. However, the need to transmit original documents between the parties for signature may give rise to delay, and could still expose the witnesses to risk from handling the signed document and the courier package. The second (and sometimes third) virtual meeting, during which the witnesses must sign (after the testator has also done so), can also be an inconvenience.
In recognition of these risks, a new emergency order was made on April 22, 2020 allowing for counterpart signatures where a Will or a Power of Attorney is executed virtually during the COVID-19 pandemic, thereby allowing these documents to be executed without delay or risk of exposure. For all of the counterparts to constitute one valid Will or Power of Attorney, each counterpart must be a complete, identical copy of the document. While minor, non-substantive differences in the format or layout are acceptable, careful steps need to be taken to ensure that each person has the correct version of the document being executed, and that the contents of each copy are the same.
The option to sign in counterparts applies only to virtual executions and cannot be used for an in-person signing. Additionally, for virtual executions to be valid (whether or not counterparts are signed), one of the witnesses must be a licensee of the Law Society of Ontario.
Executing Wills and Powers of Attorney in counterparts is just one of many options now available to clients to address restrictions in this time of emergency, but each method has its own advantages and risks. It is important for those seeking to implement their estate plans to consult with a qualified legal professional to determine which of the many options is best in their particular circumstances.
 Order in Council made April 22 2020 pursuant to s.7.0.2(4) of the Emergency Management and Civil Protection Act, RSO 1990, c E.9.