As the COVID-19 pandemic progresses, many of our clients have reached out to discuss their estate planning matters. Some want to discuss changes to an existing plan. Many have never signed a Will before.
Traditionally, the execution of Wills and Powers of Attorney took place in the lawyer’s office, with your lawyer and one of their staff acting as your witnesses. Physical and social distancing has made this impossible, and many of our clients are asking “what now?”
Execution of a Will
It is very important that you do not simply sign at the bottom of a set of type-written instructions and believe that you have now executed your Last Will and Testament.
Ontario’s Succession Law Reform Act requires that your will be signed in the presence of two witnesses, who then also sign as witnesses in your presence. These witnesses cannot be one of your beneficiaries, nor a spouse of your beneficiary.
There has been an amendment to this requirement under the Emergency Management and Civil Protection Act. For the duration of the pandemic, virtual witnessing of your signature via a video platform such as Zoom, Skype, or WhatsApp will be accepted, provided that one of your witnesses is a lawyer licensed to practice law in Ontario.
Powers of Attorney
The Substitute Decisions Act in Ontario, which sets out the rules and requirements for Powers of Attorney, is equally strict in its requirements. Witnesses must be present at the time you sign the document, and you must also be present as their sign their names as witnesses. A revocation of a prior power of attorney follows the same requirements.
There has been an amendment to the witnessing requirement under the Emergency Management and Civil Protection Act. For the duration of the pandemic, virtual witnessing of your signature will be authorized, provided that one of your witnesses is a lawyer licensed to practice law in Ontario.
Unlike Wills, there are presently no legal avenues which would allow you to create a power of attorney on your own, without witnesses.
While you cannot presently make a power of attorney by yourself, the law in Ontario does recognize a “Holographic Will” as a legal document, if certain requirements are met. This document must be entirely in your own handwriting, signed, and dated. Any instructions written below your signature are not considered to be part of your Will.
Our office is able to work with you to craft the correct wording necessary should you need to execute a Holographic Will while either self-isolating or in quarantine. One of the most common problems with holographic wills is unclear instructions, and it is therefore important to consult a lawyer before putting your wishes in writing.
If I die without a Will, does the Government Get Everything?
We hear this time and time again, and this is simply not the case. If you do not have a Will, your Estate will result in what is legally referred to as an “intestacy”. Someone will have to seek appointment as your executor from the courts and, when your debts are paid, your estate will be delivered to your living relatives, based on the priority of their claim under the Succession Law Reform Act.
If you are married, your spouse will receive an interest in your estate, which will be reduced if you have children. If you have a common-law spouse, they do not have a legal interest as a beneficiary, and may have to seek support as a financial dependent. If you have step-children, they will also not have legal interest as a beneficiary, but may also be able to seek support as a dependent.
If you are not married and have no children, the court’s appointed executor will trace your family relationship according to the Succession Law Reform Act.
I want to make a Will – What’s Next?
Our Will Questionnaire is designed to assist you in preparing a will. If you wish, you may complete the Questionnaire and return it to our Estates Lawyer, via e-mail to: firstname.lastname@example.org for a no obligation consultation.