Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

You or any of your family member may be in need of executing a will or amending a will or executing a power of attorney for personal care or power of attorney for property.  As we know that in the circumstances these days – due to Covid-19, there are limitations with respect to people’s movements and also restrictions with respect to when some individuals are hospitalized or in a nursing home or in a long-term care facility. For those reasons government has introduced specific changes to the legislation, with respect to the execution of wills and powers of attorney. Today’s lecture is about those changes, explaining what those changes are.

We begin with our disclaimer that this lecture is not legal advice.  If you have any specific questions you should contact a lawyer.  Please note that a paralegal is not in a position to advise on the issues relating to wills and powers of attorney. You must contact a lawyer for any questions or contact the Law Society of Ontario for any referrals.

Also, please note that the information in this lecture is limited to the emergency that has been declared by the provincial government of Ontario and once that emergency is lifted, then the application of this lecture is no longer valid, because we will revert back to our original method of executing wills and powers of attorneys.

In this lecture I’ll explain briefly, what is that ordinary legislative process that we use.  And, then, what are the changes that have been allowed during the emergency process? Ordinarily, when you are executing a will or a power of attorney there is a very stringent requirement of the parties to be physically present in each other’s company. For example, if a will is being executed the testator or the person who is executing that will, is present and then both (two) witnesses should be physically present at the same location and then testator signs the documents in the presence of witnesses and then the witnesses sign the documents in the presence of each other. There’s a very strict requirement of physical presence at the same time by all parties and if that is not met then those wills are not considered valid. These requirements come from different legislations – Succession law Reform Act is the legislation in Ontario for wills and then Substitute Decisions Act 1992 applies to powers of attorney for personal care and property.

Let’s talk about what is the process that is allowed during the emergency. There are 2 specific changes that government has introduced. Number one is that you are now able to execute wills and powers of attorney through audio visual technology. I’ll explain that.  Secondly, wills and powers of attorney can be executed in counter parts.

What is execution with respect to audiovisual technology? That technology must be such that all parties are able to see each other, hear each other and communicate with each other in real times. All these 3 things are essential. Now let’s say that the person is a testator / a donor.  There is a witness.  Then the 2nd requirement is that with respect to witnesses, at least one of the 2 witnesses is a licensed person—licensed lawyer or a paralegal under the Law Society Act. It must be a licensed lawyer in Ontario or a paralegal who is going to be a witness.  One of the witness—there could be 2 witnesses like that—but at least one witness is a lawyer or a paralegal. Only then you are able to have the will or power of attorney executed through audiovisual technology.

Imagine the scenario where all 3 parties are logged into this audiovisual system.  They’re all able to see each other, talk to each other, hear each other.  Then the testator or the donor executes the will or the power of attorney, while witness 1 and witness 2 are watching.  Then witness one and witness two execute and sign the documents. The requirement is that all 3 are able to hear, communicate and see each other at the same time.

With respect to execution in counterparts: Essentially what this means is that each party is executing a document, a separate document, a separate physical document and it’s being done in counterparts because all 3 parties are not physically present at the same time. What is the essential requirement then? Obviously, that the document they are executing are identical documents and once those identical documents are executed by all parties when you combine all those documents into one document then that document becomes a will or a power of attorney.

The same scenario that we took and in this case the testator or the donor has an identical copy which is identical to the witness 1 and which is identical to witness 2. All 3 individuals are physically signing 3 different documents, but those 3 documents are identical and then once you combine all 3 documents, then that becomes or constitutes that will or power of attorney.

It is important to note that these are the only 2 changes made by the government. There are no other changes made. All the other rules about the execution of Wills and Powers of Attorney, are the same and if you don’t know those rules, you need to make sure that you understand those rules or talk to a lawyer and get that information.

For example, as we know that a beneficiary of a will cannot be a witness to that will. That rule has not changed. Or, when you have to get your will probated or someone’s will probated, then one of the requirements by the court is that you provide the original, “wet” signatures.  That means that the original copy which confirms that, you know based on the signature that this is not a copy, this is not a scanned copy, but it is actually the real original copy—those requirements, none of those requirements have changed. It is important to note that.

I hope these 2 changes help you understand how wills and powers of attorney can be executed in these days and once the emergency is over then we’ll go back to the original requirement of executing these documents in the presence of all parties—in the physical presence of all parties.

Thank-you for watching.