MAKE YOUR ESTATE PLAN VIRTUALLY WITH YOUR LAWYER – OR WHAT YOU NEED TO KNOW TO MAKE A D-I-Y WILL AND POWERS OF ATTORNEY
By emergency order made on April 7, 2020, any person may now sign a will and powers of attorney virtually, or remotely, with your lawyer or licensed representative.
This new measure will make it much more convenient for you to make a new will and powers of attorney, particularly during isolation and the need to comply with the other pandemic containment requirements.
However, a person may still make a “holograph” will in Ontario.
A holograph will:
- must be “wholly” in your hand-writing, as the “testator” [Note: the hand-written portion of your document will likely be valid, even if the entire document is not in your hand-writing – to the extent any part of the document is not in your own hand-writing, that part will be excluded from your otherwise valid holograph document];
- you must sign it;
- your document must contain these key provisions:
- it identifies your document as your “Will”;
- it revokes any prior will you may have made;
- it appoints your trustee/executor;
- it contains simple dispositive provisions (i.e., how your estate is to be distributed and to whom);
- it contains a ‘power to sell’ clause for your trustee/executor; and
- it must be dated and signed by you.
It is critical that your document be entirely in your hand-writing and be signed by you at the end of the document.
If you holograph may need to be ‘probated’, which is common, proof of your hand-writing will be necessary. You could video yourself preparing and signing the document – that should be sufficient.
However, now that wills and powers of attorney may be signed virtually with your lawyer, you should also contact a qualified lawyer to arrange to prepare and sign a formal will and related estate planning documents as soon as practicable.
YOUR FORMAL WILL:
In Ontario, before April 7, 2020, the formal requirements for your (non-holograph) valid will are set out by Ontario’s Succession Law Reform Act:
- the will must be in writing;
- the will is signed at the end by either you, the “testator”, or by some other person in your presence and acting under your direction;
- the will is signed or acknowledged by you in the presence of at least two attesting witnesses who are present at the same time; and
- at least two attesting witnesses sign/subscribe the will in your presence.
As of April 7, 2020, you can sign your will and powers of attorney virtually with your lawyer (i.e., your witnesses do not have to be physically present when you sign your will), subject to a few conditions.
If you cannot read or write, you may be unable to sign your name in the ordinary sense. However, a wide variety of “marks” have been judicially considered to have intended to give effect to a will, from hand-printed signatures and parts of a signature to initials and even thumb-prints in ink. With the wide variety of “marks” that will satisfy the formal requirement of signing the will, most people will be able to execute a will without difficulty.
The same issues may arise for a person who has physical difficulty with signing a will.
While Ontario allows for some flexibility in how you “sign” your will, it is important to be cautious and taken certain steps to ensure that the requirement of your knowledge and approval of your will are not later questioned.
If there is any issue of capacity, or difficultly with the English language, for example, it is important to generate evidence that the will was read over for a non-English speaking testator in their preferred language, that it was read over for an illiterate person, or that the will was truly being signed by another person at the direction of the testator, and not as a result of undue pressure.
April 22nd, 2020