Virtual Witnessing of Wills Permitted on Ontario Under a COVID-19 Emergency Order

On April 7, 2020, the Ministry of the Attorney General issued an Emergency Order in Council (the “Emergency Order”) allowing Wills and Power of Attorney (“POA”) documents in Ontario to be witnessed virtually during the COVID-19 state of emergency.

The Emergency Order clarifies that during the state of emergency, Wills and POA documents witnessed virtually (with at least one lawyer serving as a witness) will satisfy the requirements of the Succession Law Reform Act and Substitute Decisions Act, 1992, that testators and witnesses be “in the presence of” each other while signing and witnessing these documents. The Emergency Order is a significant victory for proponents of virtual witnessing who have been concerned about the risks posed to vulnerable testators required to meet in-person with witnesses during the pandemic, thereby putting themselves at risk of contracting COVID-19 which, for some, might be deadly.

Our firm’s Wills and Estates practice group has been advocating for virtual witnessing well-prior to the Emergency Order, having been faced with a number of clients rushing to get their affairs in order only to find themselves with drafted documents and no eligible witnesses to sign them. Among those clients were Andrew and Margaret Wyszkowski, a married couple in their eighties, both of whom had underlying health concerns and had been strictly practicing physical distancing. In an effort to assist the Wyszkowskis, and to set a precedent, Loopstra Nixon LLP agreed on a pro bono basis to seek the Court’s approval of the Wyszkowskis’ “virtually” witnessed wills by bringing an Application seeking a declaration that the “virtually” witnessed wills complied with the requirement that witnesses be “present” when testators sign their documents

The Application brought by partner Peter Carey and Kavina Nagrani, with the able assistance of Student-at-law Sarah Benedict, was approved to be heard by the Superior Court of Justice in Toronto on April 9th, 2020. Notice of the Application received the attention of the Ontario estates law bar, the media, and the Attorney General. The Ontario Government was served with the Application materials. One day before the Wyszkowski matter was to be heard, the Emergency Order was released, effectively granting the relief that had been sought in the Application.

​Though the Wyszkowskis’ Application was ultimately not heard by the Court in light of the Emergency Order, the Emergency Order itself is a win for Loopstra Nixon LLP, its clients, and all Ontarians who can now execute their wills “virtually” and therefore safely.

Is this permanent reform?

The Emergency Order makes clear that virtual witnessing of Wills and POA documents is only permitted for the duration of the declared state of emergency. After the declared state of emergency ends, physical witnessing will again be required, at least until the Court addresses this issue in the future or a formal amendment is made to the Succession Law Reform Act. We continue to support the latter.

We are ready to help

If you or your loved ones are anxious to have your estate planning documents in place during these difficult times, our Wills and Estates team is here to help. We remain open for business and have a number of tools and technologies available to help make the process easy, efficient, and “virtual”.

About Loopstra Nixon LLP

Loopstra Nixon is a full-service Canadian business and public law firm dedicated to serving clients involved in business and finance, litigation and dispute resolution, municipal, land use planning and development, and commercial real estate. Major financial institutions, insurance companies, municipal governments, and real estate developers along with corporate organizations and individuals are among the wide range of clients we are proud to serve.

The foregoing has been prepared for clients of Loopstra Nixon LLP. While every effort has been made to ensure accuracy, the information contained herein should not be relied on as legal advice; specific advice should be obtained in each individual case. No responsibility for any loss occasioned to any person acting or refraining from action as a result of material herein is accepted by the authors or Loopstra Nixon LLP. If advice concerning specific circumstances is required, we would be pleased to be of assistance.

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