By Jayson Schwarz LLM and Jacqueline Moneta
One of the questions we receive all of the time relates to why we need a will. People stammer and start, do not want to discuss it, avoid it and hide the whole thing. These days it is more important than ever. All of us that love our families have an obligation to take this simple step to ensure their continuity if something should happen to us.
It is important that you make a Will for the following reasons:
- To prevent your estate from going to the provincial government;
- To make sure the people you want to leave specific things to get them;
- To avoid leaving your relatives with costly issues after your death;
- To allow you to choose people to act as your children’s adoptive parents or guardians.
- Covid 19 has brought with it a unique set of challenges when it comes to the preparation and signing of wills and Powers of Attorney.
Call your lawyer. Your lawyer will send you a questionnaire to complete, speak to you by phone or over a platform like Zoom, Webex, or Skype, verify your identity to meet Law Society of Ontario standards and then draft your will.
As of April 7, 2020 Wills can be witnessed by video conference. Previously, two witnesses had to be physically in the presence of the Testator (the person making the Will) when a typed Will is signed. The new Emergency Order, issued by the Government of Ontario, now confirms that the “presence” may be by “audio-visual communication technology”.
Please note that at least 1 of the 2 witnesses must be a licensee of the Law Society of Ontario (a lawyer or a para-legal)(the “Licensee”). This will likely require a different affidavit of execution then pre-Covid. We recommend two separate affidavits of execution, one for the Licensee and one for the second witness.
The new emergency Order now confirms that Wills and Powers of Attorney can now also be witnessed in counterpart (than means signed at different times). By using video conferencing and counterpart, wills and powers of attorney can be fully executed remotely, giving immediate validity to the documents.
These new processes allow for lawyers and clients to adapt in these unprecedented times but increase work for everyone. All Instructions need to be in writing and signed off. Clients need to review their will and ask questions on phone or virtually. Finally, signing using audio video technology requires the lawyer to keep detailed notes, likely thorough the use of a checklist, or record the meeting. Whether signing one copy of the will via video conference, or using counterparts, it’s important that both the witnesses actually see the testator, sign the will, and that the Testator actually see both witnesses subscribe the will. This may require up to two additional video conference calls with the testator to ensure compliance and validity.
As you can see not easy, but certainly doable. So the moral of the story is do your will and DO IT NOW!!!!
Finding topics is one of the hardest things for us to do. If you have suggestions, questions, concerns, critiques and quandaries please mail, deliver or fax to the magazine or to us, use the web site www.schwarzlaw.ca, or email [email protected]. We will try to deal with them in print or electronic form.
