Virtual Witnessing of Wills in Alberta Not so Clear

Virtual Witnessing of Wills in Alberta Not so Clear

In Alberta, as in
most other provinces, generally wills, powers of attorney and personal
directives need to be signed and witnessed in person for the documents to be
legally valid.  Our wills legislation
allows certain departures from those strict formalities, though anything less
than full compliance with the signing requirements lacks certainty and will
need to be approved by the Court. 

Estate planning
considerations suddenly became a time-sensitive issue for many Albertans during
the COVID-19 pandemic. Restrictions on in-person meetings during the pandemic
had been giving some individuals and some lawyers significant anxiety when it
came to completing estate planning documents. Last week, we reported on a
newly-issued Ministerial Order authorizing remote witnessing of wills, powers
of attorney and personal directives.  The
Ministerial Order brought a great deal of relief to many practitioners (and
perhaps the general public). 

We have now had a
chance to review and consider the Ministerial Order.  While it fills important gaps, our view is
that some critical points remain unaddressed and that the remote signing
protocols will only be appropriate in extreme and narrow circumstances.  We take this opportunity to outline the main
limitations of the Ministerial Order from our perspective, and to compare
Alberta’s approach to those of our sister provinces. 

Not the First to Find a Solution

Alberta was not the
first province to allow for relaxations to the signing formalities for estate
planning documents.  Ontario and British
Columbia governments have implemented similar measures to allow individuals to execute
their estate planning documents via video conferencing technology. These
changes are province-specific and will be in effect for the duration of the
declared emergency in each province. 

Ontario

Ontario led the
charge on April 7, 2020, when Ontario’s Ministry of the Attorney General issued
Order in Council 129/20 under the Emergency
Management and Civil Protection Act
, temporarily permitting the virtual
witnessing and executions of wills and powers of attorney. The temporary
changes are:

  1. Wills:
    1. The
      requirement that a will be signed and witnessed by the testator and witnesses in
      the presence of each other may be satisfied by means of audio-visual
      communication technology as long as one of the witnesses is a licensee under
      the Law Society Act (lawyer or
      paralegal) at the time of the making, acknowledgement and signing of the
      documents.
  2. Powers of
    attorney

    1. The
      requirement that the witnesses be present for the execution of a power of
      attorney may be satisfied by audio-visual communication as long as one of the
      witnesses is a licensee under the Law
      Society Act
      at the time of the execution.

Ontario’s rules
allow the documents to be signed in counterpart, meaning that all signatures do
not have to appear on the same page.

British
Columbia

On May 19, 2020, British Columbia’s
Minister of Public Safety and Solicitor General signed Ministerial Order No.
M161 authorizing the virtual execution of wills under the Emergency Program Act and Ministerial Order No. M162 authorizing
the virtual execution of enduring powers of attorney and representation
agreements.  Although dated after Alberta’s
Ministerial Order, these changes appear to have been publicly released before
Alberta’s.

Both Ministerial Orders have defined
“electronic presence” to mean circumstances in which 2 or more individuals in
different locations communicate simultaneously to an extent that is similar to
communication where the individuals are physically present in the same
location. The Ministerial Orders allow for the documents to be signed in
counterpart and require that a statement be included in the document indicating
that it was signed and witnessed in accordance with the corresponding Ministerial
Order.

Importantly, at least one witness to the estate
planning documents must be a lawyer or a notary public.

How does Alberta Compare?

As a reminder, Alberta’s Ministerial
Order allows documents be signed and witnessed in the presence of others by
video conferencing where such personas are able to see, hear and communicate
with each other in real time by an electronic method of communication.

Additionally, the use of electronic
meeting methods is only available to those that have retained a practicing
Alberta lawyer to assist them in preparing, making and witnessing their
wills, powers of attorney and/or personal directives.

Two key differences between Alberta on
the one hand, and Ontario and BC on the other, emerge:

  • Ontario and BC specifically
    allow for the documents to be signed in counterpart.  Alberta does not, leaving a question as to
    what exactly is required to comply with the new remote signing protocol.
    Anecdotally, we understand that the Court of Queen’s Bench is not accepting
    Wills signed in counterpart when submitted for probate.
  • It is a clearly stated
    requirement in Ontario and BC that a lawyer (or in BC a notary public) must
    be one of the witnesses to the estate planning documents.  Alberta merely requires the client to retain
    a lawyer to assist with the preparation, making and witnessing the
    documents.  In our view, this is an
    ambiguous direction which leads to uncertainty in its application.  For example, would a lawyer providing his or
    her client with a step by step signing checklist suffice, even if the lawyer
    did not participate in the signing? 

We understand that Ontario’s initial
ministerial direction was updated after its initial roll-out to address similar
concerns.  We hope that Alberta follows
suit and issues an updated Ministerial Order to address the above
uncertainties. 

In the meantime, a limited number of Albertans who are unable to avail themselves of existing options to create valid estate planning documents (such as signing with appropriate physical distancing protocols, or creating holograph documents), will be able to resort to these emergency measures, however in our view, the Ministerial Order will ultimately be of limited practical effect unless further guidance is provided regarding counterpart execution and the requirement for legal assistance.

If you have any questions about estate planning documents, virtual or otherwise, please reach out to Field Law’s Wills, Estates + Trusts Group.

Predrag Tomic

Predrag Tomic

Predrag (Peter) Tomic is a wills and estates lawyer with a primary focus on estate litigation. Peter’s practice includes estate planning, probate matters and resolving complex estate and trust disputes for clients throughout Alberta and Canada. Peter also regularly acts in matters involving Power of Attorney disputes, mental capacity litigation and adult guardianship and trusteeship issues. Peter has presented on estate topics for the Legal Education Society of Alberta and CPLED and frequently teaches adult education courses about estate planning and executor duties.

Laura Triana

Laura Triana

Laura Triana is a bilingual (English and Spanish) lawyer practicing in the areas of general litigation, insurance defence and estate litigation. Laura’s insurance practice includes automobile, occupiers liability and commercial general liability policies. Her general litigation practice includes contract disputes, debt recovery, property issues and corporate/commercial disputes. She is continuing to grow and learn in the areas of general litigation and estate litigation.

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