Canadian Lawyer

May 2021

The most widely read magazine for Canadian lawyers

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Page 33 of 43

32 LEGAL REPORT TRUSTS AND ESTATES requirements for witnesses to be "present" during the signing of estate planning docu- ments will include those who are "present" via videoconference. However, virtual witnessing is only permitted if an active Alberta lawyer provides legal advice. Additionally, all parties must be able to see, hear and communicate with each other in real time. In Ontario, an emergency order is in effect to permit the virtual witnessing of wills and powers of attorney over audio-visual commu- nication technology. If the will is witnessed virtually, one of the witnesses must be a licensee of the Law Society of Ontario at the signing time. If neither witness is a licensee of the LSO or a virtual witnessing is not possible, the testator will need two individuals who are not beneficiaries of the will to witness the will in their physical presence. In B.C., allowing virtual witnessing describes her method for figuring out how to get signatures on paper will documents. "We didn't want to be going back and forth to so many people's homes, so we set up a table in one of my colleague's carport, and we would schedule at a time and day to have the client come down, and we'd be there to have the documents witnessed in person." Tsui also tells the story of two of her colleagues who were willing to go to hospi- tals for a will signing, sympathetic to the client's situation. "Two days after witnessing the will, they got a call saying the client had tested positive for COVID-19, so they had to go into isolation." These stories come from the early days, with most provinces — B.C., Alberta and Ontario included — now allowing for the elec- tronic witnessing of wills. In Alberta, for the pandemic's duration, "I can write the best will ever, but I also have a legal requirement to make sure that it is properly executed." Salvatore Amelio, MLT Aikins LLP WILL-WITNESSING RULES: WEST British Columbia: Changes have been made to the Wills, Estates and Succession Act to accept electronic wills and permanently permit the remote witnessing of wills. Alberta: Remote Signing and Witnessing Regulation allows a will to be signed and witnessed remotely until Aug. 15, 2022. Saskatchewan: The Wills (Public Emergencies) Regulations permits the signing of a will to be witnessed remotely as long as one of the two witnesses is a lawyer. Wills must be in writing and signed by the person making the will and both witnesses in ink. Manitoba: The requirements for in-person commissioning and witnessing of wills and attorney powers have been suspended temporarily during the pandemic. Ontario: During the COVID-19 emergency, a testator or witnesses use audio-visual communication technology provided that the communication is in real time and at least one person who is providing services as a witness is a licensee within the meaning of the Law Society Act.

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