Estate Litigation Blog

Virtual Witnessing of Wills


by Rob Levesque, Published: April 13, 2020

Tags: covid,  emergency order,  estate planning,  pandemic,  testator,  virtual,  wills,  witnessing

By Liza Saad:

The circumstances surrounding the COVID-19 pandemic have prompted many to think about writing their Wills or making changes to existing Wills. However, during a time of social distancing and self-isolation, the legal requirement that a Will must  be signed in the physical presence of two witnesses posed a major challenge.

In response to this issue, the Lieutenant Governor in Council made an Emergency Order under s. 7.0.2(4) of the Emergency Management and Civil Protection Act temporarily permitting virtual witnessing for Wills and Powers of Attorney. The Order states that the presence of witnesses may be by means of “audio-visual communication technology.” Notably, at least one of the two witnesses must be a licensee of the Law Society of Ontario.

While this Order is a welcomed measure to help us cope with some of the challenges of this pandemic, there are still many important practical considerations that cannot be neglected. The Order is effective as of April 7, 2020 and for the duration of the declared emergency – it is not retroactive. Further, the Order does not permit digital signatures, and as such, the original Will must still be physically signed by all three parties. On a broader scale, the potential for abuse and undue influlence by interested parties may be increased by the fact that the lawyer is not physically present in the  room with the testator. As such, it is always best to consult with a lawyer to ensure your Will is duly executed, especially in these times of rapidly evolving rules and uncertainty.

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