The recent COVID-19 outbreak in Canada poses unique challenges for people who need to get their will and power of attorney documents completed, printed, and witnessed while also preventing exposure to the coronavirus.
Unless you're creating a handwritten (holograph will) or a notarial will in Quebec, wills in Canada are required by law to be physical, printed documents that have to be signed on paper in the presence of two witnesses who also sign the will, and those witnesses cannot benefit from the will (so they can’t be beneficiaries or executors or their spouses).
In most cases, the people in your “bubble” are ineligible to be witnesses because they are named in the will as legatees, which presents a problem: how do you get your will executed without breaking social distancing protocol?
We’ve put together some tips on how you can execute your will while also respecting COVID-19 protocols:
Has Canada changed any estate planning laws because of COVID-19?
Many provinces have recognized the limitations of current in-person, paper-based estate planning processes. As a result of COVID-19, the following provinces are allowing virtual witnessing of wills under while emergency orders are in place:
There are no emergency measures that allow for any type of will to be signed or stored online.
Remind me: what are the various ways to make a will, and which ones can I do online due to COVID-19?
In Canada there are a few ways to make a legal will:
- You can handwrite your will on a piece of paper (called a holograph will)
- You can use a paper will kit or use a platform like Willful
- You can hire a lawyer to draft your will
- In Quebec or BC, you can visit a notary to draft and execute your will
The *only* type of will that can be executed fully online during COVID-19 is a notarial will in Quebec. Any other type of will must be printed, signed on paper, and witnessed in person (note that a handwritten will must be written and signed on paper, but it does not require witnesses).
The *only* aspect of creating a will that has moved online due to COVID-19 is witnessing - we get into that in the next section.
What if I use Willful - can I do everything online?
Unfortunately no. Willful wills must be printed, signed with a pen, and witnessed by two people who also sign the physical documents.
I’ve heard the term “virtual witnessing” - what is that?
Several provinces have implemented emergency orders that allow you to witness your will over video chat, vs. having to get together with people in person. Many provinces have not implemented any virtual witnessing orders, ensure to double check whether your province allows virtual witnessing.
Note that while you can connect with your witnesses over video, each of you must sign a physical copy of the will with ink on paper. You can either mail a copy of your will to each witness; or you can email them a PDF to print. All copies of the will signed during your virtual witnessing process will be stored together to comprise the legal will.
Important note: if you are virtually witnessing your will, one of the witnessing must be a lawyer in good standing with your provincial law society. This is NOT a requirement if you are witnessing your will in person.
Can you provide a lawyer so I can get my documents virtually witnessed?
Ready to have your documents virtually witnessed but struggling to secure a paralegal or lawyer licensed in Ontario? While Willful cannot provide a lawyer, we have worked out an exclusive deal with the experienced team at Notary Pro to help you virtually witness and finalize your Willful documents. Read more and book an appointment with Notary Pro here.
If you live outside of Ontario, you can contact a local lawyer to help (they do not have to be an estate lawyer).
If You're Practicing Social Distancing
Thank you for doing your part to prevent the spread of the coronavirus in your community. You can still get your will completed and witnessed while practicing social distancing by taking a few extra precautions:
- If you don’t have a printer at home, ask a family member or your executor to print your will for you and leave it at your door. Only do this if you’re comfortable sharing the file with them.
- Seek out witnesses who are in your household, or who you will be seeing during social distancing (close family members). A reminder that your witnesses can’t be anyone who benefits from your will - so your beneficiaries and executors can’t sign. But family members who don’t fall into that category make great witnesses. Willful provides you with an instructions page outlining who cannot sign your will so it’s extremely clear.
- Avoid crowded spaces and touching surfaces on public transportation, if you can, when traveling to meet with your witnesses.
- You and your witnesses should wash your hands thoroughly with antibacterial soap before and after signing and witnessing the will.
- Sanitize the surface on which your will is to be signed and witnessed with an antibacterial wipe or spray.
- The Government of Canada recommends maintaining a two-meter (6 foot) distance from your witnesses. We recommend taking an extra step by avoiding direct contact with your witnesses’ hands and face (unfortunately, no handshakes, kisses, or hugs).
- If you want to ensure there is no germ transmission, you can wear gloves while signing.
- BYOP: Bring Your Own Pen - Each person coming in contact with the will should have their own pen that is sanitized before and after the signing and witnessing of the Will.
- Minimize the number of people in the room - only the Testator (the person who created the will) and two witnesses should be present.
What if I have been diagnosed with COVID-19 or I am in isolation and cannot see witnesses?
If you have been diagnosed with COVID-19 or you are quarantining, you have a few options:
- Handwrite your will (this is legal in as long as it is 100% in your own handwriting; no witnesses are required - note that in BC there are limitations to handwritten wills; if you live inBC consult an expert before creating a handwritten will)
- If you live in a province that allows virtual witnessing of wills, undertake virtual witnessing to complete your will
- Wait until you have recovered or your quarantine period has ended and then execute your will
We do not advise assigning healthcare workers as your witnesses because a witness of your will should be a trusted individual you will know in the long-term - that person may be called before the courts during the probate process to confirm they were there when you signed, or to answer questions.
This is a great time to reach out to family and friends and encourage them to get their own paperwork in order. As we’ve learned in the last year, it’s always good to have a plan in place for the unexpected.
Important note for residents of Nova Scotia, New Brunswick, Manitoba, and British Columbia:
Your Enduring Power of Attorney must be notarized if your Attorney is transacting real estate on your behalf. Your local notary public services may have reduced hours and require you to make an appointment to have your documents notarized.
We recommend seeking a notary public who is willing to come to you, or contact digital verification service Vaultie to assess whether it is a viable option in your province.
In Manitoba, under current emergency orders, Willful legal advisor Joel Samphir can assist Willful customers with the virtual witnessing any affidavits of execution for wills, or signing of an Enduring POA. Learn more about renewal of The Emergency Measures Act by the Government of Manitoba until March/April 2021.
Learn more about your province or territory’s response to COVID-19 and how to stay protected:
- British Columbia
- New Brunswick
- Nova Scotia
- Prince Edward Island*
- Newfoundland and Labrador*
- Northwest Territories*
*At the time of publishing this article, Willful does not currently serve this province/territory.