Sample Emergency Virtual Will/POA Witnessing Procedure

*Disclaimer. This procedure does not follow the formal, legal requirements for execution of these documents under the laws of Ontario and Michele Allinotte and Journey Law accept no responsibility if this procedure is used and damages arise. Every lawyer in Ontario is responsible for their own interpretation of the law and their professional obligations.

Special thank you to Danielle G. Van Ess of DGVE law in Hingham, MA for drafting the initial procedure. She did so quite quickly, while managing her law practice and family of six while ill and under lock down.

COVID-19 Coronavirus Emergency EP Signing Procedure

Set up real time web conference for at least 3 people to include: 

  • Lawyer, witness(es), testator(s)

Share web link for meeting with instructions for how to join, test system, ensure video and audio functions are working properly for every participant. Notify each in advance that the entire web conference will be recorded and that we will need to see one another via video conferencing (so pants are required but PJs/casual is fine!).

Include in your regular signing documents an acknowledgement by the client that execution of wills and Powers of Attorney by video conference is not formally authorized by Ontario law, that we are taking these extraordinary procedures due to the COVID-19 crisis, that there is a risk a court may not uphold the will, and that as soon as regular business operations has resumed, the documents must be properly executed. Sample language at the end of this documents.

Start Web Conference, recording it, with the following statement regarding the circumstances and need for these extraordinary measures:

“Welcome and thank you all for being in our collective presence, remotely via live web conference.  Today is [date]. This entire web conference will be recorded.

Due to the extraordinary circumstances created by COVID-19, the novel coronavirus which has become a global pandemic the likes of which no one alive today has ever experienced, the Province of Ontario on March 17, 2020, made an order declaring an emergency under s. 7.0.1(1) of the Emergency Management and Civil Protection Act, we are now taking these extra precautions out of deep concern for our client’s health and well-being as well as the health and well-being of all our team members.

Would you please all take turns and clearly state your full legal names and the city or town and county in which you are presently?

Ontario law specifies the powers we may delegate and the people we may appoint to assist us in the event of our incapacity or deaths as well as the legal requirements for formally creating and executing or signing those legal documents into effect.

A Continuing Power of Attorney for Property, pursuant to the Substitute Decisions Act, requires that the document be executed “in the presence of” two witnesses, each of whom shall sign the document as witnesses.

A Power of Attorney for Personal Care, pursuant to the Substitute Decisions Act, also requires execution of the document “in the presence of” two witnesses, each of whom shall sign the document as witness.

The formal requirements for execution of a Last Will and Testament are laid out in the Succession Law Reform Act. The law requires again that a will is not valid unless it is signed by the testator “in the presence of” two witnesses who subscribe to the will in the presence of the testator.

Under the Commissioners for Taking Affidavits Act, an oath shall be taken “in the presence of” the commissioner or notary public. The Law Society of Ontario has provided some guidance that it is interpreting that section as not requiring the lawyer to be in the physical presence of the client, given the state of emergency.

What constitutes “execution” is not fully defined in law. Case law suggests that the verb “execute” contemplates a dynamic, continuing process that does not conclude until the act is completed.

With all this in mind, we are executing this will virtually, with the intention that witnessing by video conference shall constitute “in the presence of” for the purposes of the Substitute Decisions Act and the Succession Law Reform Act, and that a digital signature of all parties constitutes “execution” of the documents. We are executing these documents using digital signatures and witnesses via live webcast, with the intention that this be formal execution of these documents under the laws of Ontario and that these documents have the same effect as if they were signed in ink by all of us in the same room.

We take these measures today with specific intent that this recorded web conference satisfy that burden of proof and with further intention to re-execute these documents in the physical presence, rather than virtual live presence, of one another once it is safe to do so.

Signing Procedure:

Then, ask Testator to confirm she has received and can see each instrument. Lawyer can screen share to review each document, scrolling through and explaining as if it were on paper reviewing it.  Client can ask questions, Witnesses to observe.

Lawyer to send the document signature pages for e-signing to client and both disinterested witnesses while everyone is on web conference.  Have each confirm out loud receipt and signing.

SAMPLE SIGNATURE BLOCK:

IN WITNESS WHEREOF I have signed this, my Last Will and Testament, consisting of this page and the preceding thirteen (13) pages, this    day of March 2020.

SIGNED, PUBLISHED AND DECLARED               
by SAMPLE CLIENT,                                                
as his Last Will and Testament,                                
in the presence of both of us, all of us appearing

simultaneously via live web conference,                   
both present at the same time by live video

conference, who, at his request, in his presence      
and in the presence of each other via live video

conference have                                                          
hereunto subscribed our names as witnesses.           SAMPLE CLIENT
                                                                                   

Signature                     ______________________________
Printed Name              Any Lawyer
Address                       160 Pitt Street, Unit 202
                                    Cornwall, Ontario K6J 3P4
Occupation                 Solicitor

Signature                     ______________________________
Printed Name              Any Staff
Address                       160 Pitt Street, Unit 202
                                    Cornwall, Ontario K6J 3P4
Occupation                 Law Clerk

SAMPLE WEB CONFERENCE INVITATION MESSAGE TO CLIENTS:

Meeting Title & Purpose:  Estate Planning Signing Meeting

Tues, Mar 17, 2020 3:00 PM – 4:00 PM (EDT)

Please use this link to join your video meeting, from your computer, tablet or smartphone.

https://www.howeveryoumeet.com/test

NOTE:  You do NOT need to download the app (although you may, for free, if you wish).  To join via web only without the app please select the link at the bottom right side of your screen.

Access Code: 123-456-789

You must allow access to and turn on your device’s video camera & microphone for this to work properly so that we can both see and hear one another and be in the presence of one another, as the law requires, in real time.

Acknowledgment and Acceptance of Risk

By signing below, I, {CLIENT} hereby acknowledge that my lawyer, Michele Allinotte, and her law firm Journey Law has advised and counseled me on the emergency method of signing and executing my estate planning legal documents that we are undertaking today does not currently comply with the formal, legal requirements for executing a will and/or powers of attorney under the laws of the Province of Ontario and that, as such, Journey Law is not able to guarantee me or my heirs, successors, or assigns, that these legal documents will be legally valid and enforceable.

By signing below, I acknowledge, agree to accept the risk, and to proceed with executing my documents via electronic signature and remote witnessing as a temporary, emergency measure, with the intention to formally re-execute the same as soon as the state of emergency and social distancing requirements have been lifted such that it is safe to be physically in the same place at the same time.

Further, by signing below, I hereby release from and absolve Michele Allinotte and Journey Law and its employees, agents, and assigns from or of any and all liability to me or to my: family, beneficiaries, heirs at law, named fiduciaries, successors, personal representative, or trustee, as applicable.

Understood, accepted, and agreed to by:

__________________________________________              Dated:  March     , 2020

{CLIENT}

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