Wills, Estates, and COVID-19: Important Changes to the Law

By Shelly Chamaschuk, Maya Gordon and Emma Banfield

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Many people are wondering how to prepare and sign their Wills and other estate planning documents while in a care facility or while maintaining public health recommendations for strict physical distancing. If you cannot get to your lawyer, are under a mandatory quarantine, or it is medically unsafe for you to meet with a lawyer or someone else, there is now a legally permissible way to sign estate planning documents. This blog discusses a new Ministerial Order that addresses these issues.

Historical Requirements for Executing Estate Planning Documents

Wills must be witnessed by two people, and Enduring Powers of Attorney (“EPAs”) and Personal Directives (“PDs”) by one person. Legislation in Alberta has always required that this be done in person to ensure that the person executing the estate planning documents (the “maker”) does so voluntarily, and is of sound mind at the time. The witnesses must see the maker in person actually put their pen to the paper, and then the witnesses must sign the same piece of paper. Viewing the maker by electronic means was not acceptable. Therefore, the witnesses and the maker had to be in the same room, touching the same pieces of paper.

These requirements are difficult to carry out in a time of physical distancing and for populations who are vulnerable to infection. Lawyers in Alberta recognized this reality and approached the Government of Alberta to address concerns about being in close proximity to others while getting these important documents signed properly.

The New Ministerial Order

In response, the Minister of Justice and Solicitor General of Alberta signed MO 39/2020 on May 15, 2020 which puts in place new, temporary protocols for signing estate planning documents.

It is important to note that these protocols will only remain in place for a temporary period of time and could be terminated at any time, at the discretion of the Alberta Government.

The Temporary Signing Protocol

Under the new Ministerial Order, EPAs and PDs can now be signed remotely using an electronic method of communication, so long as the parties can see, hear, and communicate with each other in real time. However, this process only applies if a lawyer is providing the maker signing the EPA or PD with legal advice and services about the preparing, signing, and witnessing of the EPA or PD.

Similarly, a Will can be signed remotely using an electronic method of communication, so long as the parties can see, hear, and communicate with each other in real time. Again, this process is only permitted if there is a lawyer involved who is providing the maker with legal advice and services about the preparing, signing, and witnessing of the Will.

As this is a brand new protocol, the lawyer assisting you with signing remotely will have a new set of requirements which they will explain to you before the meeting. The lawyer will likely require that you show them government-issued photo identification and ensure that everyone is looking at the same document and page throughout the signing process.

One of the two witnesses to the Will must swear an Affidavit, confirming that they watched the maker sign the Will. Again, the lawyer facilitating the remote signing will have instructions on how this can be done.

Takeaways

Temporary changes to the legislation governing estate planning documents allow for remote signing of Wills, EPAs, PDs and other estate planning documents. You may find that in-person document signing with appropriate physical distancing and other safety precautions is the better option for you. However, for people who cannot be together, or where it is unsafe for them to physically attend before a lawyer, remote signing options are now available and will provide all Albertans with the opportunity to safely sign estate planning documents.

If you have questions regarding the new changes please reach out to our Wills, Estates & Trusts Team


This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.