The spread of the COVID-19 virus has caused an increase in the number of people interested in making or updating their estate planning documents. However, public health advisories, office closures, and social distancing protocols have made it impossible in most cases to meet with a lawyer in person to execute documents in the normal manner. In exceptional cases (individuals who have COVID-19 or have been exposed to it), it may not be possible to meet with anyone at all. Despite the challenges, it should be possible in every case to make a legally effective estate plan from the comfort and safety of your own home.
In every situation, follow the guidance given by public authorities and your own health providers. Your lawyer will discuss with you and work within the constraints of your situation.
Review and plan
To begin, review any existing estate planning documents you have, and identify the changes you wish to make. Contact your lawyer by phone or email if you don’t have access to copies of your existing documents. Many law firms have had a longstanding practice of scanning and saving copies of all signed client documents. Even while working remotely, your lawyer will often be able to retrieve copies to send to you for review.
If you don’t have a will or other estate documents, this is the time to get started. Contact your lawyer to initiate the process. The lawyer will send you a questionnaire to help you organize the information required. By phone and email, they will work with you to clarify and confirm your instructions, send drafts for review, and finalize your documents.
When it’s time to put pen to paper, your lawyer can meet with you by video call to ensure that the proper steps are taken.
A will must be witnessed by any two adults (at least 19 years old). Ideally, the witnesses should not be a person named in your will as an executor or beneficiary, or their spouse. Anyone else who is willing and can safely meet with you will do.
The reason that a beneficiary or their spouse should usually not be a witness is that our law will presume that the gift made to them under the will is void. However, our courts have the power to order that a gift to a witness or their spouse is valid, if the court is satisfied that the gift was intended. So if there are no other options, you can have a beneficiary act as your witness. Your executor would need to make a court application after your death to confirm the gift. In these cases your lawyer would ensure that the will and other evidence will make it clear to the court that the gift was intended.
If you are unable to arrange for two witnesses, or even one, your lawyer can discuss other options with you. After a person dies, our courts can order that a document is a valid will even when it was not executed in compliance with the formal requirements of the law. Your lawyer can work with you to finalize a document and assemble sufficient evidence that would satisfy a court that the document expresses your final testamentary intention.
Enduring power of attorney
An enduring power of attorney must be signed in the presence of two adult witnesses. The witnesses must not be a person you are appointing as attorney, or their spouse, child, or parent.
In order for a power of attorney to be used to deal with interests in land in British Columbia, our Land Title Act requires that the document be witnessed by a lawyer or notary or certain other public officials. However, the Land Title Act also says that if a document is not witnessed in the prescribed manner and the Registrar of Land Titles “is of the opinion that the circumstances require,” the registrar may receive the document for filing on receipt of evidence as to the facts and an affidavit from someone who can confirm that the signature on the document is genuine. Your lawyer can prepare the affidavit that should be sufficient to satisfy the registrar, if it may be required.
If you are unable to arrange for two witnesses, for example due to quarantine restrictions, talk to your lawyer to discuss other options.
A representation agreement must be signed in the presence of two adult witnesses. The witnesses must not be a person you are appointing as representative, or their spouse, child, or parent.
If you are unable to arrange for two witnesses, talk to your lawyer to discuss other options.
Documents (other than a will) that create or amend a trust usually require only one witness. If you are creating or amending a trust, your lawyer can advise you of any more specific requirements that may apply to you.