How to lessen your risk of a malpractice claim when virtually witnessing wills and powers of attorney
[Updated April 24, 2020]
As part of its response to the COVID-19 pandemic, on April 7, 2020 the Government of Ontario released an emergency Order temporarily allowing the virtual execution of wills and powers of attorney by means of “audio-visual communication technology” as of that date. On April 22, 2020, a new emergency order was made which continues to temporarily permit the signing of wills and powers of attorney on the same terms, and added the option to do so by counterparts as of that date (see below for specific requirements). There is no specified end date for these temporary arrangements.
Under these temporary arrangements, it is required that at least one of the witnesses be an Ontario licensed lawyer or paralegal. These virtual witnessing changes are enacted under s.7.0.2(4) of the Emergency Management and Civil Protection Act and do not amend the Succession Law Reform Act or the Substitute Decisions Act.
Normally wills must be signed in the physical presence of two or more witnesses, and powers of attorney must be executed in the physical presence of two witnesses (respectively s.4(1) of the Succession Law Reform Act and s.10(1) of the Substitute Decisions Act). The emergency Order permits the execution of wills and powers of attorney in the presence of witnesses by means of “audio-visual communication technology”, which is defined as any electronic means of communication in which all participants can see, hear and communicate with each other in real time. This could be accomplished by meeting using services like Zoom, GoogleDuo, GoToMeeting, Facetime or Skype.
As the virtual witnessing of wills and powers of attorney has become an accepted part of the professional services of a lawyer preparing a will for a client, in the normal course there would be coverage under the LAWPRO policy for lawyers who do this as part of the work of drafting a will or power of attorney for a client.
How to lessen your risk of a malpractice claim
The most common causes of malpractice claims in this area of law are summarized in LAWPRO’s Wills and Estates Claims Fact Sheet. Like most areas of practice, misunderstandings and poor communication, which are often coupled with not fully understanding the details about the client’s situation, are the most common cause of claims. These problems can lead to wills that do not reflect the testator’s instructions and intent, or that do not fully address the testator’s situation. Drafting errors (e.g., transcribing instruction notes), problems with precedents and even simple typos may also give rise to claims.
Most of the focus in this document is the virtual witnessing meeting. With COVID-19 and social distancing, it is very likely your client interview meeting will also be virtual. Given the limitations of virtual meetings, the work you do prior to the intake meeting becomes more important than ever before. Consider getting your client to complete a client questionnaire before the meeting, and ask them to provide you with any other documentation that is material to their estate planning needs. Review the completed questionnaire and other documentation before the intake meeting to be in a better position to elicit the client’s testamentary intentions and effectively communicate the way in which the testamentary document will reflect those intentions.
As the emergency Order requires that a Law Society licensee be one of the witnesses for the virtual witnessing of a will or power of attorney it is much more likely that you can expect to be asked to witness a will or power of attorney that you did not prepare. It may be tempting to act as a witness for no or little money, especially if you find your other practice commitments have declined as a result of social distancing. On first blush you might think you have limited or no obligation to make sure the documents cannot be contested later. The reality is that if there are disappointed family members or beneficiaries who think there was something wrong with these documents, you can safely bet that any resulting claim will include your name. See The dangers of renting out your signature as a virtual witness on a will or POA.
As it is a completely new circumstance, there is no established practice standard for the virtual witnessing of wills and powers of attorney. Having witnesses participate by virtual means introduces some new claims risks, and some nuances to the usual risks you face when wills or powers of attorney are being signed. Here are some steps you can take to lessen the risk of a claim when you are virtually witnessing wills or powers of attorney:
Make sure everyone is comfortable: While some people will be quite comfortable with technology and online videos, recognize that some clients may be not be familiar with video technology and might be uncomfortable discussing highly personal information by virtual means. Take time to make sure everyone can see and hear the other participants and that all are comfortable proceeding.
Check client and witness ID: Verifying the identity of the testator and witnesses in a video conference setting has unique considerations. Although drafted to support compliance with obligations under By-law 7.1, the guidance set out by the Law Society of Ontario on client identification and verification in the context of COVID-19 may be of assistance in discharging this duty. The Law Society’s guidance is available from its COVID-19 Practice Management FAQs. Use the practicePRO Video Conferencing Checklist to help manage your client meeting and reduce risk. You may also wish to consider using the Law Society’s Virtual Commissioning Checklist.
Make sure the client understands the documents: This is a key and unchanged responsibility and may take longer in a virtual setting. Virtual meeting tools often permit screen sharing which could be used to make sure that clients are following along with you or to highlight and review specific parts of a document. Be sure to highlight specific client requests or unusual circumstances, how they have been addressed and their implications.
Consider client capacity: While this is not a new risk, your ability to assess client capacity may be more difficult given you are communicating over a virtual connection. Ask open questions, and probe with follow up questions as may be necessary. Take notes reflecting your consideration of capacity, especially if there are any concerns.
Watch for undue influence: Like the consideration of client capacity, this is not a new risk. Your ability to identify circumstances where undue influence is occurring is likely more difficult over a virtual connection because you can’t see what is going on off-screen. Although there are exceptions (e.g., mutual wills or if a translator is present), the client should be alone in the room. Take notes reflecting your consideration of undue influence, especially if there are any concerns. It is important to ask clients why they are seeking a will/powers of attorney at this time, and ask questions to make sure that the client is acting independently. For example, particularly where a client is instructing a will change that is a departure from prior wills, make specific inquiries into the relationship with each proposed beneficiary such as “when was the last time you communicated in person or otherwise with x beneficiary?” Be sure to document the responses in your file.
Remember to update the will execution statement: The will execution statement should reflect the circumstances of the signing. It should note the virtual circumstances of course, but also if the testator was unable to read the document, if a translation was required and a translator was present, etc. Electronic signatures are not permitted.
Take care with counterparts: The April 7th Order did not permit counterparts; however, the April 22, 2020 Order permits the virtual execution of a will or power of attorney in one or more counterparts. The regulation made under the amended Order provides that the signatures for a will or power of attorney may be made by signing complete, identical copies in counterpart, which together constitute the will or power of attorney. To help verify that identical documents are being signed, consider referencing page numbers or the last word on each page as the testator and witnesses initial the pages. The Order expressly provides that copies of a will or power of attorney will be considered to be identical even if there are “minor, non-substantive differences in format or layout between the copies”.
Documenting the virtual meeting: Taking detailed notes of what occurred, what was said and the timing can be very helpful with defending a malpractice claim as memories will fade. For a more comprehensive account of the meeting, you might consider recording it. If you intend to record a client meeting, you have a duty to inform your client before recording them, and you should also inform others present in a meeting of your intention to record. For a more complete discussion of the benefits and risks of recording, and your professional obligations please see the Law Society’s COVID-19 Practice Management FAQs addressing recording meetings.
Send reporting letter: Provide a reporting letter after virtual client meetings confirming everything that was discussed. Doing this in a timely manner will help ensure that you and your client are on the same page, and serve as a confirmation of your instructions. If you received the original signed version of each of the counterparts, review each to ensure that the will/power of attorney has been properly executed.
Don’t get caught in the transition: There is no specified date for when the emergency Order allowing virtual witnessing will end. The order simply specifies it ends when the emergency is over. Please monitor the status of this Order so that you do not have a will or power of attorney virtually executed or act as a virtual witness after the Order ends. LAWPRO plans to send a notice to the profession of the termination of the Order.
We are all doing our best to cope with the COVID-19 pandemic. Clients still need your help on legal matters, including having wills and powers of attorney prepared. The requirement for a Law Society licensee to be a witness when either of these documents is signed will mean you are more likely to be asked to witness for as long as this temporary order is in place. While working to help clients accomplish what they need, please consider the risks of virtual witnessing and take proactive steps to reduce your exposure to a claim.
Continue to monitor the COVID-19 situation for further updates. For practicePRO updates see practicePRO’s COVID-19 articles and resources.