Bennett Jones
Written by Marissa German and Barbara Kimmitt
Due to the COVID-19 pandemic, on May 15, 2020, Doug Schweitzer, Q.C., Minister of Justice and Solicitor General of the Province of Alberta signed Ministerial Order M.O. 39/2020 which modifies current legislation on a temporary basis to allow for virtual witnessing of Wills, Enduring Powers of Attorney and Personal Directives ("Estate Planning Documents"). This modification is in the public interest as due to the COVID-19 pandemic, physical personal attendance with clients for the purpose of executing Estate Planning Documents may not be possible or medically safe.
The M.O. specifies two requirements for the virtual execution of Estate Planning Documents:
- The persons must be connected to each other by an electronic method of communication in which they are able to see, hear and communicate to each other in real time; and
- A lawyer must be providing the maker/donor/testator of the document with legal advice and services respecting the making, signing and witnessing of the Estate Planning Document.
The M.O. does not expressly allow for the execution of Estate Planning Documents in counterpart and the Court of Queen's Bench has confirmed it will not accept wills signed in counterparts. The legal profession is in communication with the Minister to request a further amendment to the M.O. to allow signing in counterpart of Estate Planning Documents, which would make virtual signing less cumbersome. It is noted that BC Ministerial Order No. M161 expressly allows a will to be signed in counterpart. In Ontario, the original regulation allowing virtual execution of wills was subsequently amended to explicitly state the execution can be done in counterpart. Unless the M.O. is further amended in Alberta, lawyers in Alberta will need to physically send the same document to each party for signature via virtual witnessing.
The M.O. does not provide additional guidance for what constitutes valid video execution of Estate Planning Documents. As incorrect or incomplete execution of an Estate Planning Document may invalidate the document, it is prudent for lawyers to take additional steps to ensure that virtually witnessed Estate Planning Documents are later accepted. This is especially important as Estate Planning Documents generally become most important after the maker, donor or testator has lost capacity or is deceased, and not able to give evidence to defend the document.
The Law Society of Alberta has developed requirements and recommended best practices for lawyers who take affidavits virtually and for virtual execution of documents for registration at the Land Titles Office. Further, the Court of Queen's Bench of Alberta has made accommodations for virtually executed affidavits to be used in the Court of Queen's Bench of Alberta provided certain requirements are met. For the lists of recommendations and accommodations, visit The Law Society of Alberta's website and the Court of Queen's Bench of Alberta's website.
While the Law Society of Alberta and the Court of Queen's Bench of Alberta have not extended any of these requirements and recommendations to the virtual execution of Estate Planning Documents, the application of similar best practices would only serve to protect such documents from a later allegation of invalidity.
Lawyers who are assisting clients in the execution of Estate Planning Documents using video conferencing may wish incorporate the following best practices:
- Over video, the client shows picture identification which the lawyer compares with the video image of the individual. The lawyer should take a screen shot of the image of the identification and the image of the client.
- The client moves his or her camera to scan the room so that the lawyer may ensure that others are not present during the meeting. A note of this in the lawyer's file may be relevant if undue influence is later alleged.
- Each of the witnesses and the client have a full hard copy of the Estate Planning Documents to be signed in front of them. Each page should be reviewed.
- The signing party initials each page in the lower right hand corner. The actual signature and initials of each party is observed and viewed over video.
- Electronic signatures are not permissible for Estate Planning Documents; signatures must be done by hand. Section 7 of the Electronic Transactions Act stipulates that it does not apply to testamentary documents and this has not been modified during COVID-19.
- Immediately after signing, the client sends a scan or photograph of the signed Estate Planning Documents to the lawyer and then arranges for delivery to the lawyer of the originally signed Estate Planning Documents.
- A second video conference should be scheduled (preferably on the same date), so that the procedure above can be repeated, this time with the lawyer signing and initialing the Estate Planning Documents. For wills, if the second witness is not physically present with the lawyer, then a third video conference may be required, and the original document must in all cases be physically circulated for execution.
- The lawyer reviews the signed Estate Planning Documents to ensure that no pages are missing or substituted, and that the signatures match those viewed over video.
- The lawyer modifies the NC8 Affidavit of Witness to Will, and any other Affidavits of Attestation to reflect the fact that the execution took place via video conference.
- The lawyer provides the client with a copy of the final version of the signed Estate Planning Documents and Affidavits sworn.
Given the cumbersome process involved with virtual signing of Estate Planning Documents in Alberta, clients may choose to proceed under the M.O. only in those cases where a physical meeting is impossible given the client's own personal health concerns, or if the client is required to quarantine. If the client's situation changes and it becomes possible to meet in person it is advisable to follow up with an in person execution of the documents. If this is not possible and an issue arises regarding the execution of the Will, an application may be made to Court for validation of the document pursuant to section 37 of the Wills and Succession Act. A validation application may not be possible for an Enduring Power of Attorney or Personal Directive as the legislation for those documents does not contain a similar "saving provision".