The Ontario government will allow legal professionals to witness the signing of wills and powers of attorney through online video platforms under an emergency order passed late Tuesday to respond to the coronavirus pandemic.
While other provinces offer more flexibility, Ontario law takes a strict approach to the formalities of witnessing both wills and powers of attorney over financial affairs or personal care: Two witnesses, neither of whom can be a beneficiary or spouse of a beneficiary, must be present in person to see the will-maker sign the document.
A spokeswoman with the office of Ontario Attorney-General Doug Downey said Tuesday evening that the provincial Cabinet passed an emergency order to allow virtual witnessing, noting that it will be in effect for the duration of the state of emergency declared by the province on March 17.
The emergency measure comes as the COVID-19 crisis and rules around physical distancing have made it difficult to meet the formal witnessing requirements, and spurred a call for change among the estates-law community in the province, including an online petition that attracted more than 1,000 signatures. The Ontario Superior Court of Justice has also agreed to hear a case later this week filed by lawyer Kavina Nagrani of Loopstra Nixon LLP, asking for a declaration that the video-conference process she used to witness the wills of a married couple in their 80s is valid.
Mr. Downey said in an interview Tuesday that the new order requires at least one of the two witnesses to be licensed by the Law Society of Ontario as either a lawyer or paralegal.
“[That was] one of the things we built in as a safeguard to make sure that we had the same standard that we had before and that people aren’t being taken advantage of, that there’s no undue influence."
Mr. Downey was a lawyer before entering politics and worked on a number of wills while in private practice. He said when the pandemic situation began to unfold, he knew in-person witnessing rules would be a challenge for people engaged in more urgent estate planning.
“It’s a time where people reflect and want to make sure they have everything in order.”
Sebastian Schmoranz, managing partner of McGregor Sims Schmoranz Law Office, where he practises what he calls “cradle to grave” law in the small town of Kingsville, Ont., said he has been receiving daily phone calls from people who want to make a will or a power of attorney.
“The reality is people are really concerned about these issues. ... The problem is, unless you want to breach your social distancing guidelines, it’s pretty much impossible for you to make these documents.”
Mr. Schmoranz got in touch with the Ontario government early on in the COVID crisis to propose video-witnessing as a simple solution, and joined about a dozen other estates law lawyers and academics on a video-conference call over Zoom with Mr. Downey early last week.
Ian Hull, co-founder of Hull & Hull LLP in Toronto, who was also on the Zoom call, said the participants discussed various ways to meet the legislative requirement that wills be witnessed “in the presence” of two in-person witnesses in the same room at the same time.
“What we realized was we needed to capture the actual event of signature. And you can do that by video. You can have a three-way link and record it if you can and that solves the 'in the presence of’ problem,” he said.
The emergency order applies to typed wills. It does not prevent people from making “holograph” wills, which are entirely handwritten and do not require a witness.
Tuesday’s order is temporary, but Mr. Hull says this issue highlights a need for longer-term reforms to parts of the legal system that should be considered even after the pandemic has run its course.
“If we can thoughtfully put together a process that allows for a broader base of society to do wills, with or without lawyers, through this kind of technology, I think it’s going to have to be seriously revisited.”