Bennett Jones
Written by Barbara Kimmitt, Marissa German and Allyson Cairns-Walji
On May 15, 2020, in response to the COVID-19 pandemic, Alberta introduced temporary legislative changes to allow for virtual signing and witnessing of Wills, Enduring Power of Attorneys and Personal Directives (Estate Planning Documents) until August 15, 2020. Unfortunately, the temporary rules for remote execution of Estate Planning Documents did not expressly allow for counterpart execution, and the Court of Queen's Bench confirmed it would not accept wills signed in counterpart. As a result, the virtual execution of Estate Planning Documents was cumbersome and time consuming, as the lawyers had to physically send the same document to each party for signature via virtual witnessing, requiring several videoconference meetings.
The Alberta government has since introduced legislation that allows for the continued remote signing of Estate Planning Documents. Retroactive to May 15, 2020, the COVID-19 Pandemic Response Statutes Amendment Act, 2020 (CPRSAA), extends the temporary period for virtual signing and witnessing of Estate Planning Documents until August 15, 2022, and streamlines the process by allowing counterpart execution. CPRSAA also enables the Alberta government to prescribe additional periods in which the rules for virtual execution of Estate Planning Documents will apply.
Aside from the introduction of counterpart signing, the requirements for the virtual execution of Estate Planning Documents remain the same:
- 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.
We have updated our best practice considerations for lawyers assisting clients in remote execution of Estate Planning Documents to incorporate counterpart execution and our own experience with the virtual signing process:
- The lawyer should host the virtual signing on reliable videoconference software that he or she has experience using, and ensure the audio and video feeds are stable and all parties can see and hear each other.
- Over video, the client should show 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 should move 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.
- Each of the witnesses and the client should initial 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 witnesses and client send a scan or photograph of the signed Estate Planning Documents to the lawyer and then arrange for delivery to the lawyer of the originally signed Estate Planning Documents.
- 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 documents were signed in counterpart via videoconference.
- The lawyer provides the client with a copy of the final version of the signed Estate Planning Documents and Affidavits sworn.
In practice, we have found that the clients who are most interested in virtual execution of their estate documents are those who may be ill or elderly. Understandably, many of these clients may require someone nearby to assist with the computer and handling of paper. In these circumstances, the lawyer should be especially alert to concerns of undue influence.
While this process for virtual execution of Estate Planning Documents is an important and valuable option for clients in the current environment, the best practice is to meet in person whenever possible.