Ontario announced this week it will allow lawyers to facilitate virtual witnessing of wills as an emergency measure.
The change comes as wills and estates lawyers deal with a both surge in demand for services and the logistical nightmare of providing them in light of COVID-19.
Prior to April 7, lawyers were watching wills passed and signed through the threshold of the neighbour’s front door, or in the front yard, to maintain social distancing, says Risa Awerbuck, a partner at Torkin Manes LLP in Toronto.
While two non-beneficiaries were required to witness the will signing in-person, social distancing has meant many people have been cut off from those who would normally be present, outside their family, she says.
Not seeing anyone — even a lawyer — has become even more vital for people like the sick or elderly. A notice of application for a couple, ages 81 and 82, was scheduled for a hearing on Thursday. The pair had power of attorney and will documents witnessed by Zoom videoconference as they were “aware that elderly persons with underlying health issues, such as themselves, are particularly vulnerable to death should they contract the coronavirus.” But they were concerned their wills would not be given legal effect.
Thanks to the 11th hour regulation, a video call may be sufficient for such people. But, says Awerbuck, challenges remain for the wills and estates bar.
For one, in-person interactions that lead up to a will’s signing can reveal crucial signals about a client’s intentions, capacity and any duress they could face.
People don’t like to do this at the best of times: deal with their wills or powers of attorneys,” she says. “Because everybody’s at home, they’re with their kids, they’re not getting out. There’s just anxiety around to begin with. So, it may be more of a difficult sort of topic for people to discuss.
Awerbuck says she takes care in private, one-on-one meetings to note the clients’ demeanour, their worldview, the nuances of their native language, and even that she understands their sense of humour. On the phone or on video, she often has to prompt clients to acknowledge something verbally because she cannot see for herself that they understand through the nod of a head or eye contact.
It is really important that we know that our instructions are coming from that person — that they understand what they’re doing. And if we have concerns about somebody’s capacity or undue influence, there may be times that we have to have capacity assessments completed
There are also more technical challenges to the new videoconferencing option. For one, the original document will need to be sent to three different locations and witnessed through three different video calls, potentially. Plus, an affidavit for probate still requires an interaction with a lawyer or commissioner. An electronic copy also lacks optional safeguards such as initialing each page, notes Awerbuck. (People still have the option to include an amendment entirely in their own handwriting, instead).
There are a lot of factors that I think are always out there, regardless of COVID, and I think that what COVID has done is made it more difficult . . . But at the same time, I think that there are ways and mechanisms that we can put in place to make sure that our clients’ objectives and concerns are properly addressed and that we do get the documents signed
Despite all these challenges, interest in wills is on the rise from both lawyers and consumers, says Kamilla Kovaleva, chief sales officer at Canada Will Registry. The company behind the registry, NoticeConnect, estimates consumer will registrations are up over 300 per cent.
We’ve actually seen a huge uptick from our registry, of a lot of law firms wanting to get on board the system,” says Kovaleva. “And we’ve noticed over the last few weeks, just a huge, huge, massive uptick in just consumers registering their wills.
Part of the increase in interest is from lawyers who can’t access their paper records in the office and are now interested in setting up cloud services. But, she says, more ordinary people are also trying to find wills they may have made decades ago that may need updating. That service, which costs $35 and does not release any information to consumers, pings law firms that someone is searching for a will that may be in the firm’s possession. It’s then up to the law firm whether they share the will with the searcher, she says.
Jordan Atin, who practises under Atin PC, has worked with Hull & Hull LLP to create a checklist for video-conference will-signing and power of attorney. The checklist takes into account that two witnesses must be “in the presence of” the testator when a typed will is signed — which has historically required physical presence. Now, the new emergency order confirms that the “presence” may be by “audio-visual communication technology.”
Due to the strict rules in Ontario, “we have almost always resisted sending the will out to be executed by the client without our presence for fear that it would not be executed properly,” wrote Atin in an email. “Once we are able to interact in person, we are recommending that our clients come in to re-sign their wills at our office, just to be on the safe side.”
Atin confirms that he has seen a large increase in interest from both new and existing clients.
Particularly at this point in time, [estate planning] brings some peace of mind because they know their documents are in place, they’ve taken care of their family, their friends, charities, communities
Atin says the Ministry of the Attorney General should be commended for providing lawyers with another option for clients who don’t want to travel (or do their signatures with gloves and masks at the 10-feet-apart tables set up Atin’s backyard.)
Still, he says, there is no perfect solution. A hospitalized, elderly patient may not have access to the right technology. There is no court-form affidavit for the new system. And while the involvement of lawyers means there is insurance if something goes wrong, Ontario has strict rules about executing wills perfectly.
This is one more option, right? And a better option for those clients who can’t get witnesses, don’t want to travel, and have access to video. So, it’s very helpful. It does have a bunch of logistical issues associated with it
And we have to understand that this is not a perfect solution to our problem. And I don’t think anybody expected a perfect solution to our problem. What I’ve been saying is . . . . perfection is the enemy of good. And we can’t hold off until we have a perfect solution, we need a good solution. This allows, in my view, a good solution