The End is Near: Remote Execution of Wills and Powers of Attorney

By Munera Lawyers

On April 7, 2020, the Ontario government issued an emergency Order in Council (“First Order”), pursuant to the Emergency Management and Civil Protection Act (the “EMPCA”) which permitted Wills and powers of attorney to be executed and witnessed remotely under certain circumstances.[1] The Ontario government issued a second emergency Order in Council (“Second Order”) in which the remote execution and witnessing of Wills and Power of Attorney (“POA”) was extended to July 29, 2020.[2]

The remote execution and witnessing of Wills and POA changed two of the requirements for these documents. All other requirements under the law remained in place. The two changes are as follows:

1. For both Wills and POA that are executed and witnessed remotely, at least one witness must be an Ontario-licensed lawyer or paralegal at the time of signing;
2. For Wills executed and witnessed remotely, the testator and the witness may sign on separate and complete identical copies of the will. Both copies together will constitute the Will;
3. Donors and witnesses to POAs that are executed and witnessed remotely, may sign on separate and complete identical copies of the POA. Both copies together will constitute the POA.

On July 24, 2020, the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (“Reopening Ontario Act”), came into force.[3] Under the Reopening Ontario Act, the Second Order was extended to September 22, 2020 and then again to October 22, 2020. Most recently there was a further extension to November 21, 2020.[4]

Unless the Ontario government decides to extend this deadline, the remote execution and witnessing of Wills and POA will end on November 21, 2020. This means that any Will or POA that is executed or witnessed remotely after this date will no longer be considered a valid legal document.

Although the Order in Council was put in place for the purpose of balancing social distancing measures with the importance of ensuring individuals can continue to plan for their future in these uncertain times, lawyers should always be cautious of circumstances under which remote execution should not be done. These include, but are not limited to, issues regarding:

• Access to or competence with technology;
• Client capacity;
• Client duress, coercion, or undue influence; or
• Semblance of fraud of the Will or POA.

[1] Emergency Management and Civil Protection Act, R.S.O 1990, c. E. 9 [“Emergency Management Act”}.

[2] Signatures in Wills and Powers Of Attorney, O Reg 164/20, under Emergency Management Act.

[3] Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, SO 2020, c 17 [“Reopening Ontario Act”].

[4] Extensions of Orders, O Reg 458/20, under Reopening Ontario Act.

NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.