During this time of social distancing, there are methods to validly sign estate planning documents to enable clients to finalize their personal planning while still remaining safe.
In BC, a Will must be signed at the end in the presence of two adult, independent witnesses. For Powers of Attorney in BC, they must be signed in the presence of a BC lawyer or notary or two adult independent witnesses. For Representation Agreements for health care in BC, they must be signed in the presence of a BC lawyer or notary or two adult independent witness.
Unfortunately, most provincial statutes that allow for electronic signatures on documents specifically exclude testamentary documents. Further, in BC, case law provides that witnessing cannot be satisfied by videoconference and that “in the presence of” with respect to witnesses of signatures demands that individuals be in person (see First Can Title Co v Law Society of BC, 2004 BCSC 197). A submission has been made by the Canadian Bar Association – British Columbia Branch to the BC government to pass a law similar to the Ontario Regulation 164/20 under the Emergency Management and Civil Protection Act to allow for videoconference witnessing of estate planning documents in BC during the pandemic.
As electronic signatures and videoconference signing of estate planning documents are not currently allowed in BC, if documents are to be validly witnessed, parties should be in the presence of each other while still maintaining physical distancing, specifically remaining a minimum of two meters away from each other. There is no maximum distance requirement for satisfying the threshold of “in the presence of.” Further, there is case law to suggest that witnessing through a window or glass door likely meets the “in the presence of” requirement.
Note that the regular rules that witnesses must be independent adult person(s) still apply. And, of course, the testator, grantor, or maker, and relevant witnesses, depending on the circumstances, must meet all other eligibility requirements to effect a valid execution of documents (i.e. be the age of majority, competent, not under duress or undue influence, etc.).
If being “in the presence of” with physical distancing is not possible at this time, there is an interim “substantial compliance” solution that may suffice. Pursuant to the Wills, Estates and Succession Act, SBC 2009 c 13, (WESA), section 58, the court may validate a “record, document, or writing or marking on a will or document” if it represents the testamentary intentions of the deceased. A “record” includes data that is “recorded or stored electronically, can be read by a person, and is capable of reproduction in a visible form.” This suggests typewritten wills may be validated under s. 58. The broad language of the rectification provisions may extend so far as to save a holograph (handwritten) will, despite holograph wills not being specifically allowed under WESA. Thus, a court may later validate a Will that would otherwise be invalid based on the formal witnessing requirements of as set out in section 37 of WESA. If this route is taken, it would be prudent to sign a corresponding memo on the same date declaring that “I hereby confirm that my Will, despite not being validly executed in accordance with WESA, records my deliberate, fixed and final expression of my intention as to the disposal of my property on my death.” If “substantial compliance” as noted here is chosen, the Will should be validly executed in accordance with WESA as soon it is safe to do so.
Thank you to STEP Canada for providing resource information to members, which assisted in the writing of this post.