COVID-19: Laws and Practices for Wills, Estates and Trusts

  • June 23, 2021

NOTE: The information below was collected by members of the Executive of the Wills, Estates and Trusts Section of the Canadian Bar Association to assist other members of its national Section during the COVID 19 pandemic. While Executive members have attempted to ensure the accuracy and currency of this information, we cannot guarantee either. Please double check the current state of the laws in your region before relying on the information below. 

ISSUES:

1. Remote Witnessing: Witnessing Wills and other estate planning documents by videoconference, etc

RESPONSE:

AB: The COVID-19 Pandemic Response Statutes Amendment Act, 2020, SA 2020, c 13 was assented to on June 26, 2020 and amends numerous acts, including the Personal Directives Act, Powers of Attorney Act and Wills and Succession Act setting out that persons are deemed to be in each other’s presence while the persons are connected to each other by an electronic method of communication where they are able to see, hear and communicate with each other in real time, allowing for remote execution of personal directives, powers of attorney and wills; however, one of the witnesses must be a lawyer who is an active member as defined in the Legal Profession Act. Wills may be submitted for probate if the identical, counterpart copies are submitted together. 

BC: On July 10, 2020, Bill 19 – 2020: COVID-19 Related Measures Act came into force. This Act repealed and re-enacted numerous ministerial orders made under the Emergency Program Act, including Ministerial Order No. M162 (Electronic Witnessing of Enduring Powers of Attorney and Representation Agreements (COVID-19) Order). The Order permits and sets out the requirements for remotely witnessing enduring powers of attorney and representation agreements.

On August 14, 2020, Bill 21: Wills, Estates and Succession Amendment Act, 2020 (Bill 21) received Royal Assent. Bill 21 adds section 35.2 to WESA, allowing wills to be witnessed remotely. Remote witnessing is permitted where two or more individuals in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the individuals were physically present in the same location.

MB: Issued an Order temporarily suspending the requirements for in person commissioning and witnessing of certain critical documents, currently in effect until September 30, 2021. 

NB: An Act Respecting the Enduring Powers of Attorney Act and the Wills Act received Royal Assent on December 18, 2020, amending the Enduring Powers of Attorney Act, chapter 30 of the Acts of New Brunswick, 2019 and the Wills Act, chapter W-9 of the Revised Statutes, 1973 by allowing remote witnessing and signature of wills and enduring powers of attorney using an electronic means of communication. These amendments are to be in effect until December 31, 2022.

NL: Now has legislation that permits the witnessing of Wills (where the witness is a lawyer) by audio-visual technology. The legislation is the Temporary Alternate Witnessing of Documents Act, SNL 2020, c T-4.001 and allows remote witnessing in other situations as well.

NS: No legislation or regulations dealing with virtual will signing. Virtual witnessing of probate documents permitted in certain circumstances.  

ON: Bill 245, Accelerating Access to Justice Act, 2021 (Bill 245) received royal assent on April 19, 2021, bringing significant reform to Ontario estate law.[1]

PEI: No remote signing/witnessing for estate documents in PEI.

QC: The Quebec Bar has issued guidelines about execution of wills by lawyers, which roughly translated says:

  1. Electronic signatures of the testator and witnesses are permissible as long as the technology used permits identification of the testator and witnesses and confirmation of the testator’s consent
  2. The testator and witnesses must be able to see and hear each other simultaneously so that the witnesses can hear the testator’s declaration that the document is her/his will and everyone sees each other signing the document
  3. The testator and the witnesses must be able to see the will
  4. The integrity and confidentiality of the will and the signing process must be maintained

In Quebec, for a will not executed before a Quebec notary, a court must confirm that the will respects the rules of form in the Civil Code. The Bar does not provide an opinion or recommendation on whether a will signed this way will in fact respect the rules of form such that it will be rendered executory by the court.

Note that if a notary does the will, the notary can receive the will by technological means but must use Microsoft Teams and a platform called Consigno (similar to Docusign) for notarial deeds. This is only intended for the pandemic period.

SK: Regulations have made a permanent change regarding remote witnessing of Wills, POAs (and other affidavits and land titles documents). More details can be found on the Law Society of Saskatchewan webpage.

POAs (and other documents) that are executed remotely still require a lawyer to comply with Practice Directive 1 and sign the corresponding declaration.

Wills that are executed remotely must comply with Practice Directive 3 and lawyers must sign the corresponding declaration.

2. Courthouse Operations

RESPONSE:

BC: Accepting probate applications, but not issuing grants. Accepted applications go into the queue for the time when restrictions will be lifted. The province has a notice requirement attached to their probate applications, and because limitation periods are currently suspended, they are unable to process the actual grant of probate.

NS: Probate Court issued the attached update on its operations last week. We are now into several weeks of a provincial state of emergency in Nova Scotia and many others are concerned that the limited work the Probate Court has indicated will continue is too restrictive to serve the public interests and the needs of the public. 

COVID-19: Probate Court Matters

COVID-19: Measures Applicable to the Nova Scotia Court of Appeal

PEI: Most Court applications and motions are in person, and estate filings have not been impacted although turnaround time on filings might be just slightly delayed, if at all. Electronic filing is possible. It is not clear if there is a formal statement on commissioning of estate documents electronically, although the Registry Act was amended to allow the commissioning of deeds and other documents to be filed at the Registry of Deeds.

SK: Court house operations: Court house operations mainly resumed. Applications/documents for filing can be dropped off but limited direct interaction with Court staff. More details can be found on the Courts of Saskatchewan webpage.

Other Regions:

  • AB, MB, NB, QC, NS and ON continue to accept filings, including probate applications. There may be restrictions/changes in filing procedures.
  • NL probate court is now accepting applications for probate, administrations and guardianships.
  • NS has reversed its previous suspension of probate applications.

3. Personal Appearances:

  • All jurisdictions have limited hearings to some form of “urgent and essential” or “emergency” matters. Some have defined this or given examples, but in all cases the Courts have discretion to consider what's urgent.
  • In BC this specifically includes Adult Guardianship Applications, and those under the Health Care (Consent) and Care Facility (Admission) Act.
  • In QC this includes the Consent to Care Act.
  • AB includes Adult Guardianship applications but require a risk of immediate harm to the individual or their property, or the expiration of a previous protective order to rise to the level of emergency. AB will also allow urgent adult guardianship or surrogate matters that do not rise to the level of emergency.
  • In NB this includes applications in regard to abused or neglected adults pursuant to the Family Services Act.
  • MB and ON give examples of what is included in the definition of “urgent”. They have not specifically listed Adult Guardianship applications but, again, have discretion. ON has suspended all hearings related to estates.
  • PE, NL, NS do not define what meets the level of urgent, essential or emergency (but, again, there is discretion).
  • In SK, most Chambers appearances remain via telephone but some in-person Court appearances have resumed. Jury trials remain postponed until after June 30, 2021.

4. Commissioning Documents:

  • Almost all jurisdictions have explicitly relaxed the personal attendance requirement to allow commissioning of affidavits via electronic means. There are very specific requirements that vary provincially.
  • PE and NL have not made a statement approving the remote commissioning of affidavits.
  • BC, AB and NS include the stipulation that it must be medically unsafe or impossible for the deponent to attend in person before remote commissioning is used. Examples might include deponents who are unable to leave their residences, are not permitted to received visitors, or for those who are required to self-quarantine.
  • In SK, remote witness/commission are allowed, provided Practice Directive #1 is followed and declaration signed (see above).
Summary of Provincial Measures
Jurisdiction Remote Commissioning Probate Applications Remote Witnessing
BC Yes – restricted  Yes No
AB Yes – restricted  Yes No
SK Yes Yes Wills & POA
MB Yes Yes Yes
ON Yes Yes Wills & POA
QC Yes Yes No
NB Yes Yes No
NL Yes May require urgency No
NS Yes – restricted Yes No
PE Yes May require urgency No