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Digitizing the Business of Wills: A Review of Ontario’s Emergency Order on Wills

Signatures in Wills and Powers of Attorney, O Reg 129/20: https://www.ontario.ca/laws/regulation/200129

As of late September, orders under the Reopening Ontario (A Flexible Response to COVID-19) Act[1] have been extended to October 22, 2020.[2] One of these orders is Signatures in Wills and Powers of Attorney (the “Order”), which modifies the formal requirements of execution for the aforementioned documents to accommodate social distancing.

Description of the Versions of the Order

The first version of the Order was made under the Emergency Management and Civil Protection Act,[3] and was made on April 7. This version allowed for “audio-visual communication technology” to be used to satisfy the requirement that a testator and the witnesses to their will be in each other’s presence to acknowledge the signing of the will.[4] In other words, the testator and witnesses could all be at different locations, and still satisfy the requirement of “presence”. “Audio-visual communication technology” was defined as “any electronic method of communication in which participants are able to see, hear and communicate with each other in real time;” i.e. anything that would facilitate a video call. The order required that one of the witnesses in this situation be a person licensed to practice law or provide legal services in Ontario.[5] Identical provisions applied to the requirement that witnesses be present for the execution of a power of attorney.

The second version of the Order was made on April 22. This version further specified that the maker of a will or power of attorney, and the witnesses to that document, could sign separate complete and identical copies of the document when using “audio-visual communication technology”. These counterparts would together constitute the executed document. The counterparts would be considered identical even if there were “minor, non-substantive differences in format or layout” between them.

The third version of the Order was made on July 15, and remains in force now. This version is functionally identical to the second, except that it is made under a different statute.

Summary of the Current Rules

  • Except where specified here, the formal requirements of execution in the Succession Law Reform Act and the Substitute Decisions Act[6] are still in effect.
  • Witnesses are still required to be in the presence of the testator/grantor, but can satisfy this requirement at separate locations by using technology that enables them to see and hear each other in real time.
    • If the witnesses are using technology as described above, then at least one of them must be a licensed lawyer or paralegal in Ontario.
  • If the witnesses are using technology as described above, then they may sign complete and identical counterparts of the document, instead of the same physical copy as the testator/grantor.
    • Minor, non-substantive differences in format or layout do not cause a counterpart to not be identical.
  • The order is made under the Reopening Ontario (A Flexible Response to COVID-19) Act, and may be extended by the Lieutenant Governor in Council under s. 3(2) of same.
    • All orders in force under this statute are currently extended to October 22, 2020.

The Order’s provisions are explicitly in effect only “[f]or the duration of the emergency”. As parts of Ontario enter a second wave, it appears likely that they will remain in effect beyond their current end date. Whether these provisions will inspire any permanent changes to the relevant statutes remains to be seen.

[1] SO 2020, c 17

[2] Extension of Orders, O Reg 458/20

[3] RSO 1990, c E.9

[4] Succession Law Reform Act, RSO 1990, c S.26, at s. 4(1)

[5] Law Society Act, RSO 1990, c L.8, at s. 1(1)

[6] SO 1992, c 30

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