Update on Virtual Witnessing of Wills and Powers of Attorney in Ontario
July 19, 2021
Please note that the content below is only applicable in the province of Ontario.
Historically, in Ontario, according to the Succession Law Reform Act, subject to limited exceptions (such as holograph Wills, which are Wills made entirely in the testator’s handwriting, or Wills made by certain members of the Canadian Forces, naval, land or air force or sailors while on active duty), in order for Wills to be valid, they must be signed by the testator (or on their behalf) in the physical presence of two independent adult witnesses. The rules relating to the execution of Powers of Attorney in Ontario, as set out in the Substitute Decisions Act, also required that Powers of Attorney be signed by the grantor in the physical presence of two witnesses.
In order to deal with concerns relating to COVID-19, the province of Ontario declared a state of emergency on March 17, 2020, pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act, which allowed the province to issue several temporary emergency orders for the purpose of protecting the health, safety and welfare of Ontarians. One such emergency order, being Order in Council filed as O. Reg. 129/20, issued on April 7, 2020, allowed for the virtual witnessing of Wills and Powers of Attorney as long as the following requirements are met:
- The person (testator or grantor) executing their Will or Powers of Attorney and both witnesses can see, hear and interact with each other in real time by way of “audio-visual communication technology” (by way of video conferencing); and
- One of the witnesses is a licensee (a lawyer or paralegal) of the Law Society of Ontario.
Although the Emergency Order was, by its nature, meant to be temporary, on April 19, 2021, with the passing of Bill 245, Accelerating Access to Justice Act, 2021, virtual signing of Wills and Powers of Attorney became a permanent option in Ontario. Bill 245 contains similar requirements as the ones set out back in the April 2020 Emergency Order but clarifies that the only acceptable way of signing virtually is to do so contemporaneously, meaning that each testator/grantor and witness would sign their own fully printed set of identical documents during the same virtual meeting, with the documents being “complete” when all signed copies are together.
What Does This Mean for You?
If you do not have Wills or Powers of Attorney, or if you need to update the ones you have, you can still do so safely and without leaving the comfort of your own home as long as you have access to a computer, tablet or smartphone with video conferencing capabilities and an internet connection. Contact us today to request a consultation with one of our Estate Planning lawyers or for further information.