Estate Planning During a Pandemic
The impact of COVID-19 is being felt around the globe, bringing dramatic changes to our daily lives. The pandemic has also brought to light the importance of creating an estate plan or updating an existing one. This may not be something that many people wish to consider but it is critical to have your affairs in order, especially during unpredictable times such as these.
An estate plan typically includes a will, power of attorney and a representation agreement. Although provinces in Canada have different requirements for these documents, a common feature is having signed the document in the presence of two witnesses who also sign the document. Typically done through in-person meetings with a lawyer, it has been made very difficult due to social distancing and quarantining. Where possible, in-person meetings have been replaced by phone and video calls, but this also poses problems.
Unfamiliarity with technology for the elderly can mean they don’t have access to create an estate plan. Putting together an estate plan over the phone or through video calls can also cause concern for lawyers, regarding the capacity of their client or the presence of undue influence on their client.
To lighten the burden on individuals and lawyers, British Columbia has a ‘substantial compliance’ provision which allows the courts to declare a will to be valid without having to abide by the strict requirements. However, this too can cause problems because it only applies to wills. A power of attorney and representation agreements still need to be executed according to the formal requirements set out in the legislation. For more information on the requirements for these documents, please see the estate planning blog.
On May 19, 2020, the BC Government went a step further than the ‘substantial compliance’ provision and made two new orders that will allow for electronic witnessing. Under these new orders, the testator and witnesses must be present electronically before each other, and one of the witnesses must be a lawyer or notary public. A power of attorney and/or a representation agreement also require the witness to be present electronically, but only one witness is required, and it must be a lawyer or notary public.
These orders will remain effective from May 19, 2020 until the state of emergency is revoked. As the government has made it easier to validly create an estate plan, it is important to ensure that you have one in place or that yours is updated. If you have previously created a will that does not comply with all of the requirements, it is recommended that you re-make it according to these new orders.
If you would like to discuss your estate plan or have any other questions, please contact us here.