Is remote execution and witnessing of wills and powers of attorney permitted in the context of COVID-19 and, if so, what are the requirements?*
Yes. In many cases, while lawyers, clients, and/or witnesses are practising social or physical distancing, self-isolation, or quarantine in the context of COVID-19, lawyers are able to support clients with the execution of wills or powers of attorney remotely with the assistance of audio-visual communication technology. Wills and powers of attorney that are signed and witnessed remotely may be signed and witnessed in counterparts.
Remote execution or wills and powers of attorney are permitted until February 19, 2021, unless otherwise extended by the Lieutenant Governor in Council.
This FAQ addresses the
Legislative authority for remote execution and its continuation
Changes to in-person execution requirements
Continuing execution requirements
Scope of practice and role of paralegals
Process and best practices for remote execution
Limits on remote execution
Alternatives to remote and in-person execution, and
Other supports related to the changes.
What is the legislative authority for remote execution and its continuation?
Pursuant to section 7.0.2(4) of the Emergency Management and Civil Protection Act (the “EMCPA”), on April 7, 2020, the Ontario government issued an emergency Order in Council (“First Order”), which permitted wills and powers of attorney to be executed and witnessed remotely in certain circumstances. The Ontario government issued a second emergency Order in Council on April 22, 2020 (“Second Order”), which revoked the First Order. The Second Order was subsequently extended under the EMCPA until July 29, 2020.
On July 21, 2020, the Ontario government introduced the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (the “Reopening Ontario Act”). The Reopening Ontario Act came into force on July 24, 2020.
Pursuant to section 2(1) of the Reopening Ontario Act, the Second Order was continued as O. Reg. 129/20, Signatures in Wills and Powers of Attorney. Section 3 of the Reopening Ontario Act provides that O. Reg. 129/20 remains in force for 30 days after it is continued, unless otherwise extended by the Lieutenant Government Council. This regulation has been extended several times. Most recently, on January 15, 2021, O. Reg 15/21 amended O. Reg. 458/20, and extended the effective period of O. Reg. 129/20 to February 19, 2021.
Accordingly, O. Reg. 129/20 continues to permit the remote execution and witnessing of wills and powers of attorney until February 19, 2021, unless otherwise extended.
What requirements for wills and powers of attorney executed and witnessed remotely have changed?
There are two changes to the requirements for wills and powers of attorney resulting from the Orders (now O. Reg. 129/20).
First, for both wills and powers of attorney executed and witnessed remotely, at least one witness must be a licensee within the meaning of the Law Society Act. The Law Society understands that the Ontario government means this to be an Ontario-licensed lawyer or paralegal at the time of signing.
Second, for wills executed and witnessed remotely, the testator may sign and witness may subscribe on separate complete, identical copies of the will, in counterpart. Together, these copies constitute the will. Likewise, donors and witnesses to powers of attorney for property or personal care that are executed and witnessed remotely may sign on separate complete, identical copies of the power of attorney, in counterpart. Together, these copies constitute the power of attorney.
What requirements remain in place?
Unless otherwise noted, all requirements for wills and powers of attorney remain in place. Specifically, it is important to note:
All other witness requirements continue to apply.
Original “wet signatures” from the testator and witnesses must still be obtained for probate purposes and, in the case of powers of attorney, may still be required by third parties.
Do the Orders or O. Reg 129/20 change paralegal scope of practice?
No. Paralegal scope of practice did not change; it continues to be defined by By-Law 4 made pursuant to the Law Society Act. While the Ontario government advised that it intended for the definition of “licensee” in the Orders to permit either a lawyer or a paralegal to be a required witness, only lawyers are permitted to prepare and provide legal advice about wills or powers of attorney. For greater certainty, neither the First Order, nor the Second Order (as first enacted and as continued under O. Reg 129/20) permits a paralegal to prepare a will or power of attorney or to provide legal advice about wills and powers of attorney, including about the operation or effect of the will or power of attorney being remotely executed.
What process must be followed to complete the remote execution of a will or power of attorney?
The process to complete a remote execution of a will or power of attorney pursuant to O. Reg. 129/20 is not prescribed.
To ensure a consistent process is used and documented, and to mitigate the risks associated with not being the physical presence of testators, donors, or witnesses, lawyers may wish to consider developing or adopting a checklist which can be used to help them execute wills or commission powers of attorney with the assistance of audio-visual communication technology.
The following sample materials are provided to assist:
Counterpart Will Execution Checklist, prepared by Hull & Hull LLP
Counterpart PoA Execution Checklist, prepared by Hull & Hull LLP
You may also wish to review LawPRO’s article, How to lessen your risk of a malpractice claim when virtually witnessing wills and powers of attorney.
Should wills or powers of attorney be executed remotely in all instances?
No. Despite O. Reg. 129/20, there may be times when the execution of a will or power of attorney should not be conducted remotely. For each matter, lawyers should assess the circumstances and client instructions to determine if a remote signing is possible and appropriate.
For example, lawyers should consider whether any of the following are potential issues in a particular matter:
Lawyer, client, or witness access to or competence with suitable video conferencing technology
Client duress, coercion, or undue influence
Red flags of fraud with respect to the will or power of attorney
If any of these issues are present, the lawyer should take appropriate steps. Depending on the circumstances, the lawyer should either ensure that the issue is resolved to their satisfaction prior to the remote execution, decline to proceed with a remote execution, or, in some cases, refuse to act in or withdraw from the matter.
How can I assist a client who wishes to make a will if neither remote nor in-person execution are possible?
Where remote and in-person will execution are not possible, lawyers may wish to explore the use of holograph wills with their client. For more information, consider reviewing:
What other supports are available in respect of will or power of attorney execution during COVID-19?
Practice Management Helpline: If lawyers have specific questions about how to comply with their professional obligations or navigate practice management issues in the context of COVID-19, they may wish to contact the Law Society’s Practice Management Helpline at 416-947-3315 or toll free 1-800-668-7380 extension 3315, Monday to Friday 9 a.m. to 5 p.m. EDT, and select the option to connect with the Helpline.
Coach and Advisor Network: Lawyers and paralegals can access the Law Society’s Coach and Advisor Network, which provides access to short-term, outcome-oriented relationships with Coaches and Advisors drawn from the professions. Coaches support the implementation of best practices and Advisors assist with substantive and procedural law inquiries on client files. Lawyers and paralegals can request time with a Coach or Advisor here.