How To Execute A Will During A Pandemic

For many people, the start of the COVID-19 pandemic was the trigger that finally got them thinking about making a Will for the first time. But because the country was in lockdown, meeting with people who could witness a Will signing (usually people outside of your household) became very difficult.

Ironic, huh?

Some lawyers overcame this problem by meeting with clients outdoors–on their porches or in their backyards–to witness them sign their Wills. But a petition circulated asking the government of Ontario to relax the rule that the testator and the witnesses had to be in the physical presence of each other. The petition asked the government to allow people to act as witnesses on Will signings remotely—through Zoom or another video conferencing app.

On April 7, 2020, the Ontario government announced a temporary emergency order which confirmed that if a testator and the witnesses all connect in real-time via video conference, they are considered to be “in the presence” of each other for the purposes of signing a Will.

Will execution in the "before times"

This was a huge shift since not much has changed in the world of estate planning legislation for the last 200 years (give or take). The process to validate a Will had always been the same, requiring the same three things.

1. A physical Will

The person making their Will (called the “testator”) needs to have a physical, printed copy of their Will. This means no oral Wills, videotaped Wills, or iPhone Wills are allowed.

2. Two witnesses

There must be two people who can witness the testator sign their Will. Lots of people think that the witnesses have to be lawyers or notaries, but that’s usually not the case.

Just about anyone can be a witness to a Will signing. However, they must:

• Be over the age of majority;

• Be mentally capable (also referred to as "of sound mind".)

• Not receive (or possibly receive) any benefits under the Will; and

• Not have a spouse or partner who will receive (or may receive) any benefits under the Will.

Often friends or neighbours will do the trick!

Note: In Manitoba, only individuals from certain professions can act as a witness on a Power of Attorney (POA). For some British Columbia POAs, the witness must be a lawyer or notary public.

3. The signing procedure

The testator must sign their name at the end of the Will. In Canada, a Will cannot be e-signed, which means the signature must be a physical signature in pen (sometimes referred to as a “wet” signature). After the testator signs the Will, each of the witnesses must also sign their names (in ink) at the end of the Will. This process is often referred to as “executing” the Will.

An important aspect of this process is that all the signatures (the testator’s and the witnesses’) must be made while those people are in the presence of each other. In other words, the law requires the testator to sign the Will with the two witnesses physically present, and then each witness has to sign while the testator and the other witness are physically present.

Usually, this just means getting the testator and both witnesses into the same room so that everyone can sit around a table, sign the Will, and watch the others sign the Will. And this worked well enough... until March 2020, that is.

How virtual witnessing was introduced

The ability to witness a Will remotely made executing a Will much more accessible (and safe) for Canadians. And just a few days after the temporary legislation was put into place, we helped an Epilogue customer complete one of the first remote Will signings in Canadian history!

But even though these changes helped many people, there were a few catches that had the potential to complicate things:

• A single, physical Will with “wet” signatures was still required (i.e., no e-Wills);

• At least one of the witnesses had to be a licensed lawyer or paralegal; and

• The Affidavit of Execution had to be changed to reflect the new signing procedure.

Since a single, physical copy of the Will was needed, the remote signing process for a Will involved up to three separate video chats. It also meant couriering the physical copy of the Will twice - first from the testator to witness #1, and then from witness #1 to witness #2. One lawyer even prepared a 4-page checklist describing all the steps to witnessing a Will remotely.

For people who had their Wills prepared by lawyers, it meant a more complicated (and more costly) signing process. And for people who did not have access to a lawyer, it meant that they could not get their Wills signed in this way at all.

Ontario passed another emergency order a couple of weeks later that removed some of the issues related to remote signing but gave rise to others. Many lawyers still do not execute Wills remotely, given the additional cost and complexity.

Most provinces have passed emergency orders similar to Ontario’s, but the rules are slightly different from province to province.

Complications of virtual witnessing

Signing a Will with remote witnesses poses a complex set of challenges. Some of these challenges are not even well understood by lawyers since the courts have not had many opportunities to examine remotely witnessed Wills (which usually only happens after someone dies).

While remote witnessing may provide additional options for executing a Will during the pandemic, it creates significant complications, including:

• Up to three video conferences to remotely witness a Will signing under Ontario’s original emergency order

• Having multiple, identical copies of the Will to remotely witness a Will signing under Ontario’s amended emergency order

• One of the witnesses must be a licensed lawyer or paralegal

• A Will and/or Affidavit of Execution may require special language in cases where the Will is going to be witnessed remotely

Due to the added costs and complexity, many lawyers have decided not to use the remote signing procedure. Lawyers who use the emergency rules to execute client Wills remotely often recommend re-signing the Wills in the “old fashioned” way, once the pandemic has ended anyways, just to be safe.

For these reasons, Epilogue’s signing instructions don’t include a remote witnessing option. While it may be possible to execute an Epilogue Will remotely, you should consult with an experienced estate planning lawyer before deciding to do so.

How Can I Sign my Epilogue Will During COVID-19?

At Epilogue, our goal is to make sure that everyone who creates a Will can get it signed correctly — in the most simple and straightforward way possible.

With a few extra precautions, it’s still possible to execute a Will during COVID-19. Remember, there are three components of a traditional Will signing: (1) a physical copy of the Will; (2) two witnesses; and (3) the detailed signing procedure described in the signing instructions that come with an Epilogue Will.

Here’s how you can approach each requirement when executing your Epilogue Will:

1. Print a physical Will or have it mailed to you for a small fee

For people who don’t have a printer at home, getting a physical copy of their Will can be more difficult during COVID-19. In some parts of the country, print shops are closed or have limited hours.

Fortunately, Epilogue can print and send your Will to you! Just add a printing credit to your account and, once you’ve finished and reviewed your Will, click “Print + Send” from your Documents page.

2. Sign it with two witnesses who ideally live in the same household as each other

When witnesses are physically present for a Will signing, they do not need to be lawyers or notaries. But some people should not act as witnesses.

In most cases, this disqualifies people from witnessing the Will signing of a close family member. During COVID-19, many people are only seeing people they live with (often close family members), so it may be necessary to look outside your household to find two qualified witnesses.

Tip: It is okay if the witnesses are related to each other. It may help to find two witnesses who live in a different household than you but the same household as each other. For example, if you are friends with a couple who live together and neither of them is a beneficiary under your Will, they may be able to act as your witnesses.

3. Follow Will signing procedure while observing COVID-19 safety protocols

The procedure for a “traditional” Will signing involves the testator and both witnesses being physically together during the entire process.

If you are adhering to local health guidelines during the COVID-19 pandemic, this may mean taking a few extra precautions while signing, including:

• Practicing physical distancing during the entire process;

• Wearing a mask or face covering; and

• Following the latest COVID-19 guidelines in your community.

Some Additional Precautions

Here are some other precautions to consider when executing your Will in person during the COVID-19 pandemic:

• If it’s permitted under your local public health guidelines, everyone who will be involved in the Will signing may want to get a COVID test and quarantine a few days beforehand.

• Meet in an outdoor setting if possible. Otherwise, choose a well-ventilated room and open a window if you can.

• Have hand sanitizer, disinfectant wipes, and disposable masks available to use as necessary.

• Do not shake hands, and keep talking to a minimum.

• Ask everyone to bring their own pen to use for the Will signing.

• Leave the documents to be signed on a desk or table. The testator can sign and initial the documents while both witnesses watch from a distance, and then witnesses can take turns signing and initialing the documents while the others watch from a distance.