by Victoria Crewe-Nelson

The virtual execution of wills and powers of attorney has suddenly become a big topic for Ontario lawyers, even those practising outside the wills and estates bar. The April 7, 2020 (amended April 22) emergency Order in Council now permits, on a temporary basis, the virtual witnessing of wills and powers of attorney in Ontario. Where a will or power of attorney is witnessed virtually, this temporary order requires that one of the two witnesses be a Law Society licensee. Thus you can expect to find yourself being asked to be a virtual witness.

Understand the risks and don’t undervalue your contribution.

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. And if you did not prepare the will or power(s) of attorney (POA), you might think you do not have any obligation to make sure they 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. Remember, as a Law Society licensee there is likely an expectation that you will have taken steps to ensure the will or power of attorney was properly prepared and executed.

Here are some of the potential problems that could end up coming your way if you parachute in at the last minute to act as a virtual witness:

  • The will or POA wasn’t executed properly: If you act as a witness, be prepared to be held responsible if the execution requirements are not followed. There are very specific requirements for execution, and specifically for virtual executions:
    • The testator and witnesses must still be in each other’s presence, albeit by audio-visual communication technology. If one of you doesn’t have a working web camera with audio or smart phone, do not proceed;
    • The usual rules in the Succession Law Reform Act will still apply when it comes to competency of the witnesses, having a beneficiary as a witness, etc.;
    • An exception to the usual rules is that signing in counterpart is allowed: the testator and witnesses can each sign three identical wills (minor, non-substantive differences in format or layout are fine). When combined, these three signed documents constitute the will;
    • The execution statements at the bottom of the wills should be updated to reflect the actual circumstances of the signing.
  • Preparation of an affidavit of execution: As the licensee witness, it is likely that you will be expected to assist or arrange for the affidavit of execution. If you do not want that responsibility, it should be made clear at the outset;
  • The will or POA does not reflect what the testator or grantor actually wants. If the will was prepared by the testator, even with the assistance of an online tool or will kit, it is not going to be the same as a will drafted by a lawyer. Without a lawyer guiding a testator through their financial circumstances, helping identify obligations to dependents, coming up with different ways that a gift can be effected, the will may not reflect the actual wishes of the testator. Worse yet, if the lawyer has only limited communication with the testator it would be more difficult to assess if someone is exerting undue influence on the testator, or if the testator has capacity to execute the will;
  • Technical errors with the will or POA: the testator/grantor may have omitted key provisions that can either drastically change how assets were to be distributed (for example, by forgetting to include a residue clause), or it may just be difficult to have the will probated (for example, if they refer to family members by different names throughout the will or fail to include authority for the trustee to take certain actions). Even if errors can be validated by the Court, the additional costs incurred to fix these things may come back to haunt you.

An allegation of an error, even if it is totally unfounded, could result in payment of a deductible and if a claim is paid it could increase your premiums for five years because of the claims history levy surcharge.

The risks are likely greater if you don’t normally practise in the wills and estates area as you may not be familiar with the potential issues that could come up with respect to the preparation or execution of documents. Ask yourself if you would feel comfortable giving the testator a second opinion if another lawyer had drafted the will. If not, you probably shouldn’t be acting as a witness, or at least, not without first warning the testator in writing that you cannot provide legal advice in this area and your only contribution would be as a witness.

Playing it safe if you do act as a virtual witness

For an overview of the steps you can take to reduce your risk of a claim see How to lessen your risk of a malpractice claim when virtually witnessing wills and powers of attorney.

To protect yourself, whether you are paid or not consider doing the following:

    • Take detailed notes: Contemporaneous notes can help refresh recollections, help you see if there’s something you want to stress in follow-up correspondence, and is an excellent tool when defending claims.
    • Send a detailed reporting letter: Confirm what the scope of the retainer was, detail any legal advice that was given, and note if the client indicated if she or he was or was not going to follow that advice.
    • Make a video of the signing: For a more comprehensive account of the meeting, you might consider recording the client meeting, or recording enough of the transaction to document the date of the signing, that the will was read and understood by the testator, and was signed in the presence of the witness. 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.

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 serve 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 pandemic. Each day we are adjusting to new ways of doing things, and revised expectations. Clients still need your help with many legal issues. They may need help having wills or POAs prepared. The requirement for a Law Society licensee to be involved in virtual wills means 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 just renting out your signature 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.