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

  • May 01, 2020

NOTE: the information below was collected by members of the Executive of the Wills, Estates and Trusts Section of the Canadian Bar Association in April 2020, to assist other members of its national Section during the time of 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:

General:

While ON and SK have passed regulations allowing for the remote witnessing of wills and power of attorney documents, law societies and law reform commissions in NB, MB, BC and AB are also considering this possibility. 

AB: The Alberta Law Reform Institute has just finalized its recommendations, to be presented to the Minister soon.

Section members understand that Alberta government is working on something and it is before the justice minister.  

ON: The attached order was issued in Ontario. (English, French)

CBA Webinar on point recently.

Ontario amended its regulation on April 22 to also for allow virtual signing for counterparts. (English, French)

SK: Here is an order in council from provincial government such that Saskatchewan allows wills to be remotely witnessed. See also below law society notices:

NB: The CBA NB President asked the Deputy Minister of Justice to consider acting. Members are doing preparatory work as Law Society also has some concerns. They are also considering a webinar.

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.

PEI: PEI hasn’t moved in this direction yet.

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

  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.

NS: No movement to report in Nova Scotia either, but the estates bar is starting to advocate for an order similar to Ontario’s new order in council. Bar would support the Ontario approach, and including guardianship and personal care directives.  

MB: Has issued an order temporarily suspending the requirements for in person commissioning and witnessing of certain critical documents: in effect May 13, 2020 to October 1, 2020 (link to document below).

2. Courthouse Operations

RESPONSE:

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

BC: is 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.

Other Regions:

  • AB, SK, MB, NB, QC, NS and ON continue to accept filings, including probate applications. There may be restrictions/changes in filing procedures.
  • PE is encouraging lawyers to consider whether each particular filing is necessary and encourages them to hold onto documents until more normal operations resume; however, this is followed by a reference to probate that specifies the process for scanning a copy of the will for electronic filing and then leaving the original in the Courthouse dropbox. Does this suggest that probate is considered a “necessary” filing?
  • 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 and SK include 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).

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.
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 No
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