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Estate planning during a pandemic: innovative practices for a challenging time

Richard Niedermayer, TEP

The current COVID-19 pandemic and the resulting declarations of states of emergency, public health orders and national guidelines on travel, business openings, self-isolation and social distancing have affected everyone in Canada and around the world. As many people are at home contemplating the global effects of COVID-19, their thoughts are also turning to their own estate plan. Lawyers across the country who practice estate planning have seen an increase in enquires from existing clients who want to complete estate plans that had been in draft before the pandemic began, existing clients who want to review and update current plans previously put in place, and new clients who want to commence work on their wills and related documents, often with some sense of urgency. This has been particularly acute for clients in the health care field, first responders, or in other essential services who are continuing to work through the crises and are not self-isolating at home.

But this presents major challenges for estate planners trying to service those clients during this pandemic.  In a practice area still focused on original signed documents with independent witnesses, how do you satisfy the legal requirements for due execution of these documents in light of stay-at-home directives and social distancing requirements? The answer is to be creative, but recognize that once the pandemic is over and more normal business operations can re-commence it will likely be necessary for lawyers to meet with these clients again to “regularize” these “COVID-19 signings” with a second more formal signing process at the client’s home or the lawyer’s office.

The effectiveness of the options outlined below must be considered in light of the specific requirements of the various legislation in each province directing the formalities for properly executed wills, enduring/continuing powers of attorney for property and finances (“powers of attorney”), personal/health directives or health powers of attorney (“personal directives”), and appointments of guardians for minor children. While many provinces have adopted “substantial compliance” or “other writing” provisions in respect of wills which may make it easier to establish that remotely signed wills with only one or no witnesses (rather than the normal two independent witnesses) are valid testamentary documents, the effectiveness of the other types of estate planning documents that do not meet the statutory requirements is less clear. There are not typically any similar saving provisions in those statutes comparable to s. 8A of the Wills Act (Nova Scotia) excerpted below, and the likelihood of how a judge will rule on the validity of documents signed during this pandemic, if required to do so later, is unclear. One would expect a certain degree of latitude from the courts, but that must always be balanced with the overriding concerns about fraud, undue influence, duress, knowledge and approval of the contents, and mental capacity that are present in all cases. The safeguards in the statutes on formal execution are there to provide a standard degree of protection for those issues, and relaxing those formalities (even if necessary in a pandemic) will undoubtedly lead to a spate of court applications across Canada for approval of documents signed without them and where new ones were not subsequently executed.

As an example of the less formal legislated regime for wills, s. 8A of the Wills Act (Nova Scotia) provides as follows:

8A Where a court of competent jurisdiction is satisfied that a writing embodies

(a) The testamentary intentions of the deceased; or

(b) The intention of the deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will, the court may, notwithstanding that the writing was not executed in compliance with the formal requirements imposed by this Act, order that the writing is valid and fully effective as if it had been executed in compliance with the formal requirements imposed by this Act.

So where does this leave the estate planner and their clients? While each case will be unique based on the risk factors and risk tolerances applicable to the client and lawyer, the national and provincial guidelines and orders in place at the time, the physical space limitations at the client’s home or the lawyer’s office (if it is still open), and the technological capabilities of the client and the lawyer, the list below presents several options to be considered. This is not intended to be a comprehensive identification of all the choices that could be made. The manifestation of the pandemic is evolving daily, but so too is the legal profession’s responses to it. The creativity of the estate planning bar (one more typically known for following decades and centuries of stodgy precedents and common law) is soaring.

Some of the options include:

  1. Standard method – wills, powers of attorney, personal directives and guardian appointments can continue to be executed in person with the client and witnesses all present together, but sitting far apart, with the lawyer as one of the witnesses. This would require large boardrooms or other large rooms, or open air spaces, where the required two metre distance between individuals for social distancing guidelines can be observed. Some helpful tips from the Law Society of Alberta on in-person meetings are set out at the end of this article.
    Pros:
    •  Meets legislated formalities
    Cons:
    •  Where to do it (can’t be at a closed lawyer’s office)?
    •  Is there a second witness available for the will?
    •  Are clients and lawyers comfortable with this approach and being out of their homes and being somewhere else to do this?
  2. Glass door or window or in adjacent cars – surprisingly there is already some precedent from a 1781(!) case for this type of execution being “in the presence of” the testator (see Casson v. Dade, 1 Bro. C.C. 99, S.C.) This could involve leaving or passing documents through a door or window after watching the client sign, and then the witness retrieving the signed documents and signing the same originals. If the documents include a will, two persons could stand outside (but two metres away from each other) to witness the will.
    Pros:
    •  Meets legislated formalities based on the caselaw and legislation
    Cons:
    •  Same as above
  3. Using other local witnesses – where appropriate independent witnesses are available in the place where the client is located, the lawyer may be able to supervise the signing in front of those witnesses through a conference call or videoconference technology. This would allow the lawyer to evaluate factors like capacity, undue influence or duress (more below), document the signing by way of a memo to file, and answer any questions or concerns which may arise at the time of the signing. Normal rules preventing persons who work in hospitals or long-term care facilities from witnessing estate planning documents for the patients/residents are being relaxed in some places during the pandemic.
    Pros:
    •  Meets legislated formalities
    Cons:
    •  Clients may not have access to appropriate technology (printer/scanner, video conferencing etc.) to make this work
    •  May need virtual commissioning for affidavits (see below)
  4. Holograph will – a holograph will is a will solely in the testator’s own handwriting and signed by the testator, and are valid in many provinces in Canada. While most lawyers would not normally recommend holograph wills for their clients, during the pandemic this may be an opportunity for clients in particularly difficult health circumstances or with technology limitations where the client’s needs are not complex to execute a simple will and therefore ease their mind about their estate distribution. If a draft will had previously been circulated to a client that they now wish to execute but are self-isolating without any witnesses, consider the use of a holograph will to “incorporate by reference” the unsigned typed document or some other typed document. The lawyer can provide input and advice into the preparation of the holograph will by phone or videoconference during the writing of the will by the client if needed.
    Pros:
    •  Would meet legislated formalities for holograph wills in many provinces
    Cons:
    •  Does not assist with other estate planning documents unless they permit documents signed without a witness
  5. Virtual witnessing – some lawyers have taken the view that estate planning documents can be “virtually witnessed” by the client signing the documents in one place while the lawyer watches them do so on a live video link. The signed documents are then returned to the lawyer via mail, courier or in person at a later date and then are signed by the lawyer (and another witness presumably if it is a will) who witnessed the signing by video. The concern with this approach is validity as it novel. Is this simply a technology-enabled extension of witnessing “in the presence of” through a window or glass door? Are statutory provisions that just require some of these documents to be “witnessed” broad enough to accommodate non-contemporaneous signing of the same original after seeing the client sign by video? At least one Registrar of Probate in Nova Scotia has advised that she would be willing to accept wills signed in this manner for proof in common (regular) form if the affidavit of execution makes it clear it was witnessed via videoconference virtually.
    Pros:
    •  May work! But legal effect is uncertain, and will require court applications to confirm validity if the documents are not properly re-executed at a later date
    Cons:
    •  See the pros…

Note: some estate planning documents require affidavits. Some law societies (including the Nova Scotia Barristers’ Society (NSBS), for example) have issued guidance on commissioning affidavits via video conference. The NSBS notes that the best practice is for the client to provide their original document to the lawyer for execution if possible. If not execution of a printed electronic (scan or fax) copy and then later the original when it becomes possible is preferred. In either case the jurat of the affidavit is an important record and should accurately reflect the circumstances of the swearing/affirming. For example:

Sworn to/Affirmed

by videoconference

from _________________ (location of affiant)

to ___________________ (location of lawyer taking oath)

this ____ day of _______ 2020

  1. Solo signing – as noted above, many provinces have provisions to allow a court to order that a “writing” is valid and fully effective as though it had been executed in compliance with the formal requirements imposed on wills. The Nova Scotia provision is noted above as an example. If a client is self-isolating alone or only with the beneficiaries of their will, and is therefore unable to obtain two independent witnesses to comply with the normal rules for signing, the lawyer may consider revising the execution language in the will to reflect that it is being signed during a State of Emergency for that province or during the pandemic generally and tracking the language found in the specific provincial legislation that might authorize “other writings”. It is less clear that this type of “no witness” signing would work for other estate planning documents such as powers of attorney, personal directives or guardian appointments, as the legislation authorizing them does not typically include similar saving provisions to the mandated due execution of those documents. It remains to be seen how flexible a court will be in determine the effectiveness of documents signed in this manner during the pandemic. Finally, in order to provide contemporaneous documentary evidence of the intention of the client, which will be useful at a later date to a court attempting to evaluate the validity of documents executed without the requisite formalities, a conference call or videoconference with the client to observe the signing would be appropriate if it is possible.
    Pros:
    •  May permit signings as a last resort when none of the other options are available
    Cons:
    •  Without witnesses the documents may not be valid
    •  Court applications to determine validity will be required if they are not re-signed later, including proof in solemn (complex) form for the “will”

In all of the situations noted above, the onus remains on the lawyer to ensure the client understands and approves of the documents they are executing, to provide an adequate opportunity for them to ask questions during a video conference signing, and to evaluate capacity, undue influence or duress. The lawyer should document for their file the circumstances of signing by the client by way of a contemporaneous memo to file confirming their opinion that the client had capacity, was not under duress, had sufficient understanding, and describing the actual circumstances of the signing. A report letter to the client should be done at that time as well. Lawyers should strongly advise the client to properly re-sign their documents (including swearing any affidavits) at their earliest opportunity once the restrictions imposed by the pandemic cease. Clients must also be advised that a court or other agency may not accept documents executed via videoconference. These measures are critically important when conducting a remote signing meeting.

Once signed, the documents in question need to be preserved for future use. Lawyers should provide information and advice on safe storage methods for newly signed original documents which are kept in the client’s home for the time being. Where possible, lawyers should ask clients to send scans or photos of each signed document to the lawyer for electronic filing, in case something happens to the originals before they can be safely stored in a vault at the lawyer’s firm, or in secure external storage arranged by the client.

Estate planning during a pandemic is not a topic I ever thought I’d have to write about. But these are unique global circumstances that we are all dealing with. In these challenging times creativity, good judgment and risk assessment is required in each case to customize the solution that is best for each client situation.

In-Person Meetings – From the Law Society of Alberta

If an in-person meeting with a client must occur, the Law Society of Alberta has provided the following helpful suggestions:

  • Before arranging any meetings, ask clients and other visitors about symptoms and possible exposure to COVID-19.
  • Place signs at the office entrance, listing the COVID-19 symptoms and asking those with symptoms not to enter.
  • Discourage those who are sick from visiting the office. If they must leave their homes, they should wear masks.
  • Do not allow people to linger in the firm’s lobby. Consider removing chairs from the lobby.
  • Meeting in-person does not necessarily mean being in the same room. If you can see the client in-person while they are signing, you do not have to be in the same room with them. Clients might execute a document in their cars while the lawyer stands nearby, as one example.
  • Identify a designated board room where all firm meetings with clients will take place. This will make it easier to disinfect the surfaces of the table and chairs before and after each client meeting.
  • Have sanitizing gel on hand in the boardroom, or a wash station nearby, and ensure all participants clean their hands before and after the meeting.
  • Consider asking clients to bring their own pens.
  • Keep a distance of least two metres from the client during the meeting and keep the meeting as brief as possible. Do not shake hands.
  • Have the documents ready at the opposite end of the table for the client to review and sign. The lawyer should have a separate set of copies, to allow them to explain the documents to the client and to answer questions. If possible, try to have these discussions in advance of the meeting.
  • Minimize the number of people in the office who handle the executed documents and ensure they wash their hands after doing so. Gloves are another alternative.

This update is intended for general information only. If you have questions about the above, please contact a member of our Estates and Trusts group.

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