In light of COVID-19, more and more Canadians are feeling the need to start writing or making changes to their wills. Until now, a will was only considered legally valid if signed in the presence of two witnesses (who met the legal requirements for age, and who are not beneficiaries or spouses of beneficiaries who take under the will). Traditionally, this signing requirement has meant that the testator and the witnesses must be physically together during and for the signing process.

The idea of having to suddenly make a will due to unforeseen circumstances is stressful enough. COVID-19 has made this traditional requirement of in-person signatures and witnessing nearly impossible for those practicing social distancing or self-isolation.

How To Witness The Signing of Wills While Physically Distancing

New developments for virtual witnessing have recently come about. While the requirement for wills to be physically signed has not changed, the Emergency Order in Council of April 7, 2020 now allows for the virtual witnessing of wills. This Order was put in place to help Ontarians get their affairs in order as they continue to practice physical distancing during the COVID-19 pandemic. As of now, this Emergency Order will be revoked on May 6, 2020, unless it is extended.

How Do You Virtually Witness the Signing of a Will?

Audio-visual technology must be used so that the person signing the will document, and the two witnesses witnessing the signature, can see and hear one another as the will is being signed. Thankfully, we live in an age where we have ready access to audio-video technology. FaceTime and Skype are two examples of audio-visual technology that can be used in the virtual witnessing of a will.

There are, of course, measures in place to ensure that virtually witnessed wills are signed correctly, and to make sure that witnesses are legally eligible to be witnessing a will and are not under undue influence. The Emergency Order requires that at least one of the witnesses be a licensee within the meaning of the Law Society Act (in example, a lawyer or a paralegal). Both witnesses must still meet the legal requirements for witnesses under the Succession Law Reform Act. For example, the witnesses must be at least 18 years of age, cannot be beneficiaries under the will, and cannot be spouses of a beneficiary who takes under the will.

What do the new Rules Mean?

Here’s a run down of the requirements as outlined by the new Emergency Order of April 7, 2020:

• The testator must sign the will in the presence of witnesses either in-person or using audio-video technology;
• Each witness must then sign the original document in the presence of the testator, either in-person or virtually via audio-video technology;
• The witnesses must still meet the legal requirements for witnesses under the Succession Law Reform Act for age and cannot be a beneficiary or spouse of a beneficiary who takes under the will; and,
• At least one witness must be a licensee within the meaning of the Law Society Act (in example, a lawyer or paralegal).

The amendments do not provide a procedure for signing wills virtually. However, Gosai Law is implementing best practices to facilitate the virtual witnessing of wills. We are also taking instructions for wills via video-conference.

Whether or not your health has been directly affected by COVID-19, we understand that recent events have made you want to make sure everything’s in order. We at Gosai Law are happy to help take care of this for you, so you have one less thing to worry about.

If you wish to create a will and/or require a lawyer or paralegal to virtually witness your will signing, please contact us by email at info@gosailaw.com or via our contact form on our website. While our physical office location remains closed, we continue to extend our support to you remotely.