Physical distancing protocols during the COVID-19 pandemic have complicated the execution process for wills (“Wills”), enduring powers of attorney (“EPOAs”) and representation agreements (“RAs”). Each of these documents has a specific set of rules for proper execution. The main challenge amidst physical distancing is the witnessing part. Witnessing the signing of documents requires individuals to be in close proximity with one another, which is discouraged by BC health care providers at this time. Although our law makers have established work arounds for witnessing affidavits and certain land title documents during COVID-19 through use of video technology, no such work arounds are currently permitted for Wills, EPOAs or RAs. Below is an overview of the execution requirements and the work arounds adopted by our firm while COVID-19 remains at large.
Wills. The execution of Wills in BC is governed by the Wills, Estates and Succession Act BC (“WESA”). WESA provides that a will must be (a) in writing, (b) signed at its end by the will-maker in the presence of 2 witnesses, and (c) signed by the said 2 witnesses in the presence of the will-maker. There is no requirement that either of the 2 witnesses be a lawyer or notary. Any 2 adults can act as witnesses. However, neither witness should be an individual, or the spouse of an individual, who is named in the Will as executor or beneficiary. If such an individual were a witness, the Will would still be valid, but the appointment or gift to the relevant witness, or his or her spouse, would be invalid.
Enduring Powers of Attorney. The execution of EPOAs in BC is governed by the Power of Attorney Act (the “POA Act”). The POA Act provides that an EPOA must be in writing and may be executed in one of two ways:
- signed by the adult making the EPOA (the “Donor”) in the presence of 2 witnesses, and signed by both witnesses in the presence of the Donor; or
- signed by the Donor in the presence of 1 witness provided that witness is a lawyer or notary of BC, and signed by the lawyer or notary in the presence of the Donor;
A witness must not be a person named as attorney in the EPOA, and must not be a spouse, child, parent, employee, or agent of a person named as attorney in the EPOA (unless the attorney is a lawyer, notary, or licensed trust company).
As mentioned above in option 1, an EPOA can be validly executed with two non-lawyer/notary witnesses. However, if the EPOA is signed without a lawyer or notary as witness then it may not be accepted by the Land Title and Survey Authority (“LTSA”) for dealings with land title matters. Although the EPOA would be valid, the LTSA may request further documentation to accept the EPOA under the circumstance. Likewise, an EPOA signed without a lawyer or notary as witness may not be accepted by financial institutions for dealing with financial matters, as financial institutions may not be accustomed to seeing EPOAs that are not signed with a lawyer or notary as witness.
Representation Agreements. The execution of RAs in BC is governed by the Representation Agreement Act (the “RA Act”). The signing requirements for RAs are mostly the same as that set out above for EPOAs. The RA Act expressly authorizes execution by the Donor with two witnesses present, neither of which need to be a lawyer or notary. However, similar to comments above regarding EPOAs, if the RA is not signed with a lawyer or notary as witness then health care providers may be unwilling to accept the RA and take decisions from the appointed Representative.
Current adopted work arounds by Clark Wilson
In person. In appropriate circumstances, we may be willing to carry out the execution of estate planning documents in person. We would only do this in circumstances where all meeting parties are symptom free, and are low risk individuals. In carrying out an in person meeting, we would bring the documents to the client(s) at an agreed meeting place somewhere outside where we can maintain physical distancing as best as possible. We would recommend bringing hand sanitizer and masks as an extra precaution.
3rd party witnesses. If an in person meeting with one of our lawyers and staff is not possible, then the client(s) may sign on their own with witnesses of their choosing, assuming they have people around them that are available to witness and can do so at low risk. In these circumstances, we would provide the client(s) with the relevant estate planning documents along with a signing checklist and instructions for execution. If the client(s) request, we could make ourselves available by video to walk them through the signing process.
If the only witnesses available are family members that are named in the documents, then it may be appropriate to proceed with having them witness despite the issues it may create for the execution requirements previously discussed. Under the circumstances, upon any of these documents taking effect, a court application can be made to seek an order to rectify any deficiencies resulting from family members acting as witness.
If neither of the witnesses is a lawyer or notary, then we would include language within the EPOA and RA to express the validity of the documents as executed, even though not signed with a lawyer or notary as witness. We would also include language to express that meeting with a lawyer or notary as witness would have been unsafe. This language would be used as an attempt to satisfy those people and organizations dealing with the EPOA and RA that they can accept these documents as is.
No witnesses. If the first two options above for execution are not possible, then the client(s) can sign the documents without witnesses. Although the documents would not be validly created without witnesses, the unwitnessed documents will speak to the client(s) intentions and can be used as evidence to support an application to the court for an order to validate the documents and/or any appointments made within them. In these circumstances, we would include clauses within each document to express that, although the document is not validly executed, it is still a true reflection of the client(s) intentions.
It should be noted that on April 7, 2020 it was announced that Ontario would allow virtual execution of Wills and EPOAs in certain circumstances. While such an order has not been made in BC, it is possible that BC will follow suit.
Our Wills, Estates & Trusts group continue to support our clients through COVID-19, and are available to assist with the execution of estate planning documents.
UPDATE: On May 19, 2020, the British Columbia government released Minsterial Order M161 permitting the electronic witnessing of wills and Ministerial Order M162 permitting the electronic witnessing of enduring powers of attorney and representation agreements. Our office has published an article with further details regarding these Ministerial Orders which can be found here. Stay tuned for further updates.