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Apr 22, 2020

The Pandemic, the Province of Ontario and the Luddites

By Donald Carr

Since the onset of COVID-19, lawyers practising throughout the common law world have been extremely concerned about the difficulties they face, conforming to existing statutory requirements relating to the execution of wills and powers of attorney - essential instruments for the preservation of assets inter-generationally and, in the case of powers of attorney for personal care, necessary documents to ensure that persons with cognitive disabilities and, in some cases, physical problems, are looked after by those who are their chosen caregivers.

Complying with the existing law in the Province of Ontario during the current pandemic has been a substantial challenge.

Statutory requirements

In Ontario, similar to the laws in the other provinces of Canada, the requirements of the Succession Law Reform Act (in the case of wills) and the Substitute Decisions Act, 1992 (for powers of attorney) have long required that the testator/grantor execute the appropriate document in the presence of two witnesses, each of whom sign the same document in that capacity. All three have to be physically present when each of them signs. There are provisions in each statute disqualifying certain persons, who are in particular relationships with the testator/grantor, from being witnesses.

Medical requirements

With the arrival of COVID-19, the exposure of testator, witnesses and lawyer to the dread disease made compliance with statutory requirements highly problematic.

The existing legislation mandated that the testator and witnesses be in the same room at the same time. Given the requirement for physical distancing, however, was the room, where the signing was to be effected, large enough? The table(s) and chairs had to be free from infection. How far from each other did the testator/grantor and the two witnesses have to be in order to be safe? All three could not use the same pen, which might carry infection. How was the document to be passed from one to another? What about the document itself? It could hardly be sprayed with some effective alcohol-based sanitizer! And where could the lawyer, who gave instructions about how and where to sign, sit?

The order of the day at the beginning of the pandemic was to resort to masks for all; ensure that all used appropriate sanitizer, before entering the room and during the process; select a room large enough to use a large table or separate tables; place chairs at least six feet away from each other; use separate pens, each brought by a signatory; and handle the documents with gloves.

If, by some chance, the weather was dry enough and warm enough (during January, February and part of April in Ontario!), as an alternative, if one of the three signatories or the lawyer lived in a house with a yard, the signing could be completed outdoors using folding card tables and chairs (properly spaced), but still with the use of masks and sanitizer. (Some estate planning lawyers were known to keep those tables and chairs in the trunk of their cars!) Of course, residents of apartment buildings could not avail themselves of this novel arrangement unless an accessible park was nearby.

Similar precautions, of course, had to be taken when the lawyer originally took instructions from the client.

Substantial risk, therefore, had to be assumed by lawyer, client and witnesses.

Temporary requirements during an emergency

Enter the Emergency Management and Civil Protection Act, a provincial statute which had been in existence, in various forms, for several years.

Under that statute, and subject to certain conditions, for the duration of a declared emergency, the Government of Ontario could, by Order in Council (a decision by Cabinet), make sweeping changes to the requirements of existing legislation. Alternatively, the Ontario Legislature could be recalled to pass legislation. Had it been recalled, only 11 MPPs, including the Speaker, were required to constitute a quorum.

A state of emergency had been declared in Ontario on March 17, 2020, and was still in effect in early April 2020. Orders in Council were made in respect of other Ontario statutes. The Province’s powers were broad enough to include changing the requirements for executing and witnessing wills and powers of attorney.

From the onset of the pandemic, the legal profession had been calling for changes to be made to the legislation relating to the execution of wills and powers of attorney. The profession, through existing groups such as the Ontario Bar Association, STEP, individual lawyers, law firms and officials within the department of the Attorney General, struggled to find ways to address the need to keep those involved in the execution of documents safe, while, at the same time, ensuring that those documents were valid expressions of the voluntary wishes of the testator or grantor. Numerous differing recommendations were made. The Attorney General consulted with select members of the profession.

Finally, on April 7, 2020, an Order in Council was made altering the signing requirements, which had become so difficult to follow without exposure to the virus.

In short, the requirement that a testator/grantor and witnesses be physically present for the signing and witnessing of a will or a power of attorney was, during the emergency, to be satisfied by means of audio-visual communication technology, where participants were able to see, hear and communicate with each other in real time. One of the witnesses, however, was required to be a licensee under the Law Society Act (i.e. a lawyer or registered paralegal).

The Order in Council appeared to some to be a perfectly acceptable and relatively simple way around the current difficulties. To many, the temporary provisions seemed to fit the bill.

However, a large number of practitioners believed that the difficulties which still existed could be alleviated if the Order in Council had allowed for counterpart signatures on copies of the document, instead of the insistence on one document bearing all signatures.

They, evidently, made their views known to the Attorney General.

On April 22, a further Order in Council was made, permitting “identical copies of the” will/power of attorney “in counterpart, which shall together constitute the” will/power of attorney. Some leeway was allowed as, notwithstanding “minor, non-substantive differences in format or layout between the copies,” they were deemed to be “identical”.

Were the two Orders, which became Regulations under the two statutes, now the panacea?

I think not.

No assistance for many testators/grantors

A large number of clients wishing to make a will or grant a power of attorney do not have a cellphone, let alone a computer, given their age. Among those who do have such tools, the complexities of using the various means of video conferencing frequently prohibit their ability to use such systems. Current lockdown requirements make it impossible for relatives, friends or technicians not living in the same residence to assist them.

Thus, for a substantial number of those who need to make a will or a power of attorney, the Orders in Council offer nothing. They cannot participate in virtual meetings and are, therefore, left with the challenge of executing documents in the physical presence of two witnesses, putting them and the witnesses at great risk.

Enter the “audio-visual communication technology”

Even where clients and witnesses can use a computer competently, notwithstanding the second Order in Council, there are still many problems.

The prudent lawyer has to preside over a series of activities, ensuring that none is defective.

In addition to complete adherence to the law, including the requirements of the Orders in Council, the lawyer has to be certain that, using new processes, no claim of negligence or malfeasance can be made later against him or her.

A procedure entailing the following steps has to be followed carefully.

A successful audio-video conference must be arranged where the testator, the independent witness and the lawyer or paralegal, acting as a witness, must be able to see, hear and communicate with each other in real time. For evidentiary purposes, the entire process must be recorded in some fashion.

During the audio-video conference, essential questions have to be posed by the lawyer so as to ensure the propriety of several issues. Among other things, the lawyer has to be satisfied that the document has been read and understood, that the testator/grantor is executing the document voluntarily and not as a result of the undue influence of others, that the witness is not disqualified from acting as such and, finally, that the required signings take place in full view of all.

Arranging and conducting a virtual conference will take some time. Additionally, following the virtual conference, the documents, as signed, must be delivered back to the lawyer.

Many testators/grantors consider these documents to be private and are most concerned that great care be taken to keep them confidential. In normal times, witnesses, other than the lawyer or paralegal involved in drafting, were not in a position to read the contents of a will or a power of attorney. All they were required to do was merely witness the signature, sign and, perhaps, initial each page as the lawyer quickly turned the pages. Now, using the procedure sanctioned by either the first Order in Council or the second one, the witness has the ability to read the whole will or power of attorney – anathema to many testators/grantors.

Following all of these actions, the lawyer has to prepare an affidavit, setting out the manner of execution and witnessing of the document. This affidavit is in addition to the “normal” affidavit required by the Rules of Civil Procedure.

In actual practice, the necessary processes and formalities are so difficult, time consuming and stressful that many lawyers are opting to revert to the “physical presence” process, outlined above and originally used prior to the Order in Council.

An easier process

Prior to the passing of the “alleviating” Order in Council, several suggestions were submitted to the Attorney General. Among them was a relatively simple process to avoid much of the rigours imposed by the pandemic.

Section 6 of the Succession Law Reform Act, in force historically, has always permitted a testator “to make a valid will wholly by his or her own handwriting and signature, without formality and without the presence, attestation or signature of a witness.” This is known as a “holograph will”.

If the testator’s will is simple, with just a few paragraphs, preparing a holograph will was a complete solution.

However, many clients need wills, sometime multiple wills, which contain complicated provisions addressing taxation issues, difficult family arrangements, complex trusts and other issues. Thus, in many cases, it is impractical to expect a client to prepare holograph wills.

Courts have long recognized that a holograph will could “incorporate by reference” a document in existence before the time of the testator’s execution of the holograph will - thus accepting, as a valid part of that will, a document that the testator had written at an earlier time and which had additional wishes or provisions, consistent with the holograph will.

However, an Ontario case, Facey v. Smith, 1997 CarswellOnt 1643 (Ont. Gen. Div) - decided by a single trial judge - contained a statement to the effect that a typed document could not be incorporated into a holograph will by reference to it and that the document to be incorporated had to be in the testator’s handwriting. However, that statement was obiter. Earlier Ontario cases, each dealing with attempts to have separate documents incorporated by reference into a holograph will, but with differing types of documents, had rejected such attempts. However, a Saskatchewan case, Re Chamberlain, 1975 CarswellSask 82, where there was a printed form of will with additions in the testator’s handwriting, and a separate sheet of paper wholly in his handwriting referring to the printed form, held that the second piece of paper was indeed a holograph will and incorporated the earlier form of will by reference.

Thus, there has been some uncertainty and it is submitted that, during pandemic times, society could well afford to extend the concept of “incorporation by reference” to a pre-existing document, however written - whether by hand, typed or prepared by computer.

Some lawyers, including this author, suggested to the Attorney General, before the passage of either Order in Council, that the government adopt a much simpler process. They suggested that, during the period of the emergency, a holograph will could incorporate by reference one or more documents in existence at the time of its execution to be considered part of that will. The additional document or documents could be in the testator’s handwriting, or in any other form of writing, including computer generated. Such documents could contain dispositions of property and other provisions normally found in a will, and, for protection, the signature of the testator was to be on every page.

They also proposed that amendments be made to the Substitute Decisions Act, 1992 that would allow a power of attorney to be made in the handwriting of the grantor, without witnesses - a veritable “holograph power of attorney.” As an effective power of attorney could be effected without complex provisions and thus could be handwritten, no incorporation by reference was recommended.

The proposal submitted to the Attorney General was not accepted.

Representatives of the Ontario government insisted that the proposals made require the amendment to two statutes, which could only be effected by the Legislature and the Legislature was not sitting.

It is submitted that the rejected provisions did not require amending statutes any more than the actual provisions of the Orders in Council did. In any event, even if the Ontario Legislature were to be recalled, as indicated above, the necessary quorum is so small that relatively few MPPs will be required.

Unfortunately, the Ontario government has missed two opportunities to provide safety to testators, grantors, witnesses and lawyers, and has left behind those among us who cannot use modern computer facilities.

* The author wishes to acknowledge Melanie Yach, a partner in the Estates and Trusts Group of Aird & Berlis, for her contribution to this article.

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