The spread of COVID-19 has been an unprecedented challenge for all Canadians and has significantly impacted most aspects of everyday life. This crisis has also sparked an interest in creating and amending one’s Will. However, the social distancing requirements designed to protect Canadians have created a new challenge in creating and amending Wills, which the provincial government has attempted to address through newly-enacted legislation. Even with legislative changes intended to assist Canadians, time can only tell whether significant Estate Litigation will result from the relaxation of procedural safeguards intended to protect the interests and rights of testators.
Historically, legislation governing the creation and amendment of Wills required the presence of two witnesses. These witnesses would acknowledge the signature of the maker of the Will, also known as a “testator”, would both sign the Will, and acknowledge the signature of the other witness. While the legislation does not explicitly indicate that the witnesses must be physically present, this is how the legislation was traditionally interpreted. This creates an unexpected challenge due to the current social distancing requirements. How can a Will be created or amended, when witnesses can no longer be physically present?
Not all Wills have to be witnessed. An alternative option is to create and sign a handwritten Will, also called a ‘holograph Will’. As long as the holograph Will is entirely handwritten and signed by the testator, it can be deemed valid without the signature of a witness. However, a holograph Will is not always a viable option; for example, where a testator is unable to read or write, or when a testator wishes to address complex estate matters that cannot be fully addressed in a holograph Will.
In light of the current circumstances, the Ontario government has enacted temporary legislation to assist Ontarians where a holograph Will is not an appropriate solution. As of April 7, 2020, Ontarians can execute Wills virtually – this includes the acknowledgment of both a witness and the testator’s signature. As long as a testator and the witnesses can see, hear, and communicate with each other in real time through a variety of audio-visual technologies, a Will can be created or amended regardless of the physical location of the parties. At the time of writing, this legislation will be revoked on April 21, 2020, but its applicability can be extended fourteen days at a time, by the Ontario government.
Unfortunately, this legislative change does not assist individuals who do not own a computer, cellular phone, or other device capable of using audio-visual technologies. Additionally, this legislative amendment does not assist individuals who do not have reliable internet access. However, creating and amending a Will is a very serious matter and a further broadening of the requirements to create or amend a Will could result in the elimination of the safeguards intended to protect a testator’s interests. These temporary legislative amendments achieve a delicate balance between expanding witness requirements in light of the spread of COVID-19 and maintaining the protection of a testator’s interests.
The newly-enacted legislation broadens the definition of “presence” but creates a new requirement for individuals acting as witnesses. Under this newly-enacted legislation, when the testator and witnesses are using audio-visual technologies to acknowledge a signature on a Will, one of the witnesses must be a “licensee”, as per the definition in the Law Society Act. This includes both lawyers and paralegals – as long as the licensee is authorized to practice law or provide legal services in Ontario.
Even with the requirement that either a lawyer or paralegal act as a witness to the execution of a Will, or amendments to a Will, these temporary legislative changes raise significant challenges regarding a Will’s validity, which may ultimately lead to Estate Litigation. An issue central to the creation and amendment of Wills is that of undue influence – whether the testator creating the Will, or requesting changes, is acting of their own accord or whether they are being influenced by a third-party. Undue influence was a concern before the newly-enacted legislation came into power. However, the in-person witnessing requirements that have since been eliminated created a procedural safeguard wherein a testator’s interests were protected as much as possible.
Previously, a lawyer could confirm with a testator that they understood the document that was being signed and ask questions with the intent of confirming that the testator was acting in their own interest, rather than under the influence of a third-party. This practice did not eliminate the issue of undue influence, but provided some protection for vulnerable individuals. Conversely, the newly-enacted legislative amendments are untested. While coming from the good intentions of the Ontario government in light of the current crisis, it remains unclear as to whether self-serving third-parties will utilize these amendments to take advantage of a vulnerable individual.
Linked with the issue of undue influence is that of capacity. In Ontario, applicable case law indicates that the highest degree of mental capacity at law is required to create a valid Will. For legal professionals acting as virtual witnesses under the new legislation, this creates a new challenge. Now, legal professionals must determine whether a testator has the highest degree of mental capacity at law, without an in-person interaction. Virtual interactions can still provide assistance in determining capacity. However, these interactions would likely provide less assistance when compared to an in-person meeting. Based on the very high legal standard regarding mental capacity to create a Will, Estate Litigation may ensue as a result of the inability to conduct in-person meetings to determine capacity.
Another potential Estate Litigation issue arises from the broad wording of the new legislation. The Regulation indicates that two witnesses must be present through the use of audio-visual technology, which is defined as an electronic means of communication where participants can see, hear, and communicate with each other. The Regulation does not indicate particulars of what the parties need to see, hear, or communicate. Specifically, it is unclear as to whether a witness or testator will need to view another party put pen to paper when signing a Will, or whether viewing the other party indicate that a signature is made and applying their judgement to determine that a signature actually was made. This also raises issues regarding vulnerable testators – how can it be confirmed that a document observed to be signed through the use of audio-visual technology was actually signed at the time that its alleged signing was observed and was the same document that will subsequently be circulated to and signed by the other parties.
The new legislative changes are intended to allow for individuals to create and amend Wills, without contravening the social distancing restrictions. However, as indicated above, these changes could lead to a variety of Estate litigation. If you have concerns about the validity of a Will you believe has adversely impacted you or your family, you should consult with Rastin Gluckstein Lawyers to determine whether you have an Estate Litigation case.
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