The First Virtually Witnessed Will
When I was practicing as a tax and estate planning lawyer, I watched many people sign their Wills in the official role of “witness”. In almost every instance, it took place in a boardroom in a downtown office building. The Will would be printed on special paper and presented in a blue folder. I would bring the documents into the room with a handful of pens for the client to choose from, wearing a suit and tie, of course.
Yesterday, I was back in that familiar role, but in an unfamiliar way.
On April 7, 2020, the government of Ontario announced that while the state of emergency is in place in Ontario, there will be a new (temporary) way to witness a Will being signed.
Putting the new rules into practice
It felt different from the beginning. For starters, I was in sweatpants - at home - staring at my laptop - wearing a headset. The other witness, my Co-founder Arin, was doing the same.
Under the new rules, a witness does not need to be “physically present” to witness a Will being signed. The witness can be “present” by means of audio-visual technology where all parties can simultaneously hear and see each other.
Yesterday, we successfully followed the new rules and procedures and helped my friend Venessa sign her Will.
Here’s what it looked like:
The first video conference: Signing of the testator
Venessa, Arin, and I hopped on a video conference around 11:00 am. We spent about fifteen minutes talking about social distancing and the effect it has had on our lives. Then Venessa placed her Will in front of the camera so we could see it. Arin explained to Venessa the procedure we were about to follow and then asked for our permission to record the session. Venessa and I agreed.
Venessa flipped through the pages of her Will and let us know how many there were. Next, she went page by page and put her initials in the bottom right-hand corner. When she got to the last page she used her normal signature (which was impeccable, by the way), and signed above where her name was printed. She lifted that page and held it in front of the camera for us both to see.
With that, video conference #1 was complete. Arin stopped the recording and we made arrangements to get the original signed Will into my hands (respecting social distancing measures, of course).
The second video conference: Signing of the first witness
When the original signed Will was in my possession we got ready for video conference #2. This time, we skipped the talk of COVID-19 and jumped right into it. Arin asked our permission to record and we were off. I flipped through the pages to confirm that Venessa had signed and initiated all of the necessary pages. She had. Then I did the same, while Arin and Venessa watched. When I signed on the last page I held it up for the others to see. My signature wasn’t as nice as Venessa’s, but it’s not a contest. And just like that, video conference #2 was complete.
The third video conference: Signing of the second witness
We made arrangements to get the original signed Will, now with two sets of signatures and initials, into Arin’s hands (respecting social distancing measures, of course). With the original signed Will in Arin’s possession, we were ready for video conference #3. At this point we were tired. But we knew we were close. Arin pressed record, initialed every page, and then signed on the last one. He held it up for all to see. We nodded in unison. This Will was now legally binding.
Arin and I will take care of the Affidavit of Execution and get the package of documents returned to Venessa for safekeeping.
This was the first, but certainly not last of these virtual witnessing ceremonies.
Extraordinary times, right?
