20/05/2020 by Morgan Elander
*UPDATED* British Columbia Wills in the Age of COVID-19
**UPDATED MAY 19, 2020 - Ministerial Orders under the Emergency Program Act now provide that wills may be witnessed while the will-maker and witnesses are in each-others "electronic presence". This is discussed further below) **
(originally posted April 16, 2020)
In the last month or so, our firm has noticed a sudden uptick in the number of people inquiring about making a will. Being optimists, we hope this is merely a matter of folks finally having the time to think about estate planning as they are stuck at home. At the same time though, this is also a particularly difficult time to make a will, as most law offices, including ours, have instituted social distancing measures reducing meetings with clients. Worse yet, some of the people most in need of making a will are also the people who should be avoiding outside contact at all costs.
While it has been easy for us to handle estate planning consultations and to take wills instructions via telephone and videoconferencing appointments, the bigger challenge has come with ensuring the proper execution of wills.
So what options are there to execute a will in the age of COVID? Here are a few ways we can still assist you in completing a will.
Physically Distant Will Signings
Where circumstances permit, we have still been meeting with our clients to execute their wills while attempting to maintain as much physcial distance as posisble. In some cases this has included signing at our office, where we are limiting traffic coming and going, screening our clients (and ourselves) for risk factors, and maintaining a good distance between us and our clients while signing. In other cases, this has included attending clients homes and watching them sign through a window, or on their back patio while maintaining a good distance.
While a little patience may be needed for us to fit these types of appointments into our busy schedules, it is one option we have to accommodate our clients’ needs.
Witnessing at home
You do not actually need a lawyer to witness a will. It is our standard practice that we witness the wills that we prepare so that we can ensure that is has been done properly, but all that is required at law are two witnesses over the age of 19 who are not named in your will as executors or beneficiaries.
Some of our clients have been fortunate to have witnesses of their own to witness their execution of the will we have prepared for them, such as roommates or non-immediate family members living with them. In these cases, we draft the will to our clients instructions, review the draft over the phone or videoconference, and provide instructions as to the proper execution of the will. Once we receive the signed will, we review the execution to ensure it has been done correctly, and if necessary, advise the client how to correct the errors in a second attempt.
While not everyone will have access to appropriate witnesses, for those who do this may be a safer alternative than meeting with our lawyers and staff.
**UPDATED* - Electronic Will Signings
Effective May 19, 2020, Ministerial Order M161 permits that a will may be validly executed while the will-maker and the witnesses to will are in each other's electronic presence, subject to some important limitations.
First, the definition of "electronic presence" in the order requires the use of "audiovisual communication technology...that enables individuals to communicate with each other by hearing and seeing each other." Accoringly, it appears that telephone or audio only conferences will not be sufficient for these purposes - videoconferencing is required. Second, at least one of the witnesses to the will must be a lawyer or notary-public, unlike a will witnessed in person for which no lawyer or notary public is actually required. Finally, the order requires that wills witnessed in this way must include a statement that it was signed and witnessed in accordance with the order - we are in the process of drafting a suitable statement to include in our wills.
This Ministerial Order will remain in effect until the state of emergency either expires or is cancelled. As such, wills can only be witnessed this way so long as the declared state of emergency continues. While not all of our clients have access to videoconferencing technology, for those that do we now have a further option to validly execute wills while maintaining physical distance.
Where circumstances do not permit any of the solutions above, in a worst case scenario clients have opted to execute a will in a way that does not meet the formal requirements of a legal will in BC. This could include a will witnessed via videoconference without a lawyer, a will witnessed by only one witness, or even a will that is not witnessed at all.
Such wills are not valid under BC law, however the new Wills Estate and Succession Act that came into force in 2014 contains provisions which would allow a court to make an order that such a will is valid.
While this is not our preferred option as it would necessitate your estate incurring the costs of a court application to recognize your will is valid as well as the risk that such an application may fail, it may be the best option for clients unable to meet with any witnesses, such as persons who are immunocompromised or who are suffering from COVID-19.
For our clients who do elect to proceed this way, we include wording in the will explaining the circumstances of the execution of the will, with the hope of providing the court with information that would support a finding that such a will should be made valid. Further, in such cases we also offer to witness the will again in the proper manner once circumstances permit for a nominal fee, provided there are no changes to be made to the will.
While this entire situation has provided challenges to almost every facet of our everyday lives, everyone has been digging deep and finding ways to get the important things done. When it comes to making a will, we are hopeful one of the above methods will work for you. If you have any questions regarding the above or would like to schedule a telephone appointment to discuss making a will, please do not hesitate to contact us at 250-372-1234, or by email to email@example.com