For hundreds of years in common-law jurisdictions around the world, a will-maker has been required to sign their will in the physical presence of the witnesses and the witnesses have been required to sign the will in the presence of the will-maker. Similar requirements have generally been applicable to the execution of Powers of Attorney and documents that allow one to appoint someone to make health and personal care decisions (a “Representation Agreement” in BC).
Broadly speaking, these physical presence requirements have been maintained as a means of providing some assurance that a document that is purported to be an individual’s estate or incapacity planning document, was in-fact signed by that person. Practically, a physical presence requirement has also provided an opportunity for professionals who draft and witness such documents to take steps, in the presence of the client, to satisfy themselves that the client understands the nature of the document and appears to be signing the document free from any undue influence.
In response to the risk presented by the emergence of COVID-19, British Columbia’s Minister of Public Safety and the Solicitor General issued Ministerial Orders No. M161 and M162. Together, these orders temporarily depart from the long-standing requirement that witnesses of wills, powers of attorney, and representation agreements must be physically present at execution by permitting witnessing by videoconference. This temporary measure was put in place to allow individuals to do their estate and incapacity planning despite the restrictions on interpersonal contact that have been put in place to address the pandemic. Now, it appears that some of these changes may be made permanent.
In a news release issued on June 22, 2020, it was announced that the provincial government has introduced legislation that would make the ability to remotely witness wills a permanent fixture in BC. The draft legislation not only would make the ability to witness wills remotely permanent, it also would allow for the creation and digital signing of “electronic wills”. These are defined (for the moment at least) as wills created in an electronic form, meaning “a form that (a) is recorded or stored electronically, (b) can be read by a person, and (c) is capable of being reproduced in a visible form.”
These changes represent a dramatic shift in the law concerning the creation and witnessing of wills. This shift will certainly create new opportunities and will make it easier for many people, including some people with health conditions that prevent meeting in person, to be able to put a will in place. That said, the writer of this article must admit to some respectful scepticism regarding the Attorney General’s statement that, “With this change, lawyers and notaries will no longer have to tell very sick people that there needs to be a personal visit in the hospital, or a court application, before their wishes can be recognized. Technology makes court applications, or the risks of these kinds of visits, unnecessary.”
When an individual is very sick and in hospital, that very fact is often sufficient to raise the spectre that the individual (a) may not have the capacity to put a will in place and (b) may be subject to undue influence. This can put the will at risk.
Individuals who do not like what the will says may, given the circumstances surrounding the creation of the will, assert that the usual presumptions that the will-maker had capacity and was free from undue influence, are spent. By doing so, these individuals may shift the burden of proof to those trying to uphold the will. It would then fall to those who wish to uphold the will to demonstrate to a court, on a balance of probabilities, that the will-maker actually did have capacity and did not put the will in place as a result of undue influence.
Part of a drafting lawyer’s professional responsibility is to be satisfied that the will-maker has the needed capacity and is acting freely. It is important to carefully document what steps were taken to justify those conclusions. The lawyer’s notes on these issues can end up playing a critical role in efforts to uphold the will if a claim is made that the will is invalid due to undue influence or lack of capacity.
In the context of taking instructions from, and witnessing the will of, a person who is in hospital and in very poor health, it is important to have and document a robust basis upon which to found the determination that the will-maker is capable and acting freely. While it may be possible for a lawyer, through remote-only meeting and witnessing, to make an assessment sufficient to be satisfied that such a client has capacity and, perhaps more challengingly, that the client is acting freely, it seems likely that there will still be occasions where personal visits at the bedside will be needed.
Like all significant changes to the law, it is difficult to predict exactly what all the implications of this shift will be, but it seems certain to make it easier for many British Columbians to put wills in place – a laudable goal given that by some estimates, nearly half of all Canadians do not have a will! The temporary measures currently in place have certainly made life easier for some of our clients already and have allowed us to serve clients in relatively remote communities more readily.
Stay tuned for further developments.
. . . .