Canadian province permits virtual witnessing of documents during COVID outbreak

Wednesday, 15 April 2020
Under the Emergency Management and Civil Protection Act, Ontario’s provincial government has temporarily permitted the virtual witnessing of wills and powers of attorney (POAs) as a result of the coronavirus outbreak.

Ordinarily, both wills and POAs must be signed in the physical presence of two witnesses. Under the province’s Emergency Order, issued on April 7, the presence of such witnesses “may be satisfied by means of audio-visual communication technology,” meaning any technology through which the three parties can “see, hear and communicate with each other in real time.”

Wills and POAs signed in the province do not usually require either witness to be a legal professional: merely they cannot be beneficiaries of the estate or family members of the testator. However, to safeguard against issues of lack of capacity or undue influence, the Emergency Order requires that, for documents witnessed virtually, at least one of the witnesses must be a licensee under Ontario’s Law Society Act.

Law firm Torkin Manes adds: “Although not stated in the Emergency Order, it is implicit that both witnesses must still meet all of the requirements set out in the Succession Law Reform Act and Substitute Decisions Act for who can be a proper witness to a will or power of attorney.”

However, experts at law firm Fogler Rubinoff also point out that the Order does not legislate for the practicalities of circulating all the documents between the parties, and says the estates bar is working to determine a suitable protocol to manage this.

Ontario does allow holograph wills, written entirely in the handwriting of, and signed by, the testator, without requiring witnesses; however, hologaph POAs are not permitted.

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