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New Normal: Part 2 Estate Planning Continued

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When Remote Witnessing is Not an Option

In our last "New Normal" blog post, we discussed how remote witnessing of wills, powers of attorney, and representation agreements is possible in light of Ministerial Orders No. M161 and No. M162, made May 19, 2020.

While many estate law practitioners are thrilled that there is now an option to remotely witness estate planning documents, and for those documents to be considered legally valid, it is important to recognize that remotely witnessing estate planning documents is not always a viable option. What do you do if your client does not have access to the technology required to connect remotely? What do you do if your client declines to use video conference technology, due to privacy concerns or otherwise? What do you do if any of the will-maker or witnesses do not have access to a printer and/or scanner?

The state of emergency in British Columbia was declared on March 18, 2020, meaning that estate law practitioners in the province had two months where they had to get creative. We discuss some options that estate law practitioners have been employing over the last eight weeks below.

WILLS

(1) Instruct your client to execute their will with two witnesses

This option could be effective in a scenario where a client lives in a care facility or community living situation. If remote witnessing is not an option, you can instruct your client on how to execute their will themselves, in the presence of two others. The following should be kept in mind:

· send the will with detailed and plain language instructions to the client for the will-maker and the witnesses to follow;

· send a letter enclosing the will - the letter should caution the legal effect of errors in the execution process;

· advise that a will-maker's spouse, beneficiaries, and beneficiaries' spouses must NOT sign as a witness - any gift to that person under the terms of the will would them be void;

· request a copy of the executed will and examine it to confirm proper execution.

(2) Meet your client in-person

If neither remote witnessing nor witnessing by others are options, you may need to consider meeting your client in-person to witness their signature. The following tips should be considered:

· follow the health recommendations from the Provincial Safety Officer and the British Columbia Centre for Disease Control;

· consider signing wills outside, in open air, such as on your client's porch, a driveway with a small table, or a building lobby;

· instruct your client to bring their own pen;

· consider wearing a mask and/or gloves, and instructing your client to do the same;

· consider your second witness - a neighbour or a member of your staff, for example.

POWERS OF ATTORNEY

In order to be effective for the purposes of the Land Title Act, an enduring power of attorney must be signed by the witnessing officer, who certifies that the donor "appeared before" the officer and that officer witnessed the donor's signature (section 43 of the Land Title Act).

If remotely witnessing your client's power of attorney is not an available option, you could consider the option discussed in more detail below.

(1) Meet your client in-person, but sign contemporaneously and in counterpart

· meet the client in the same room but sign contemporaneously on different copies of the power of attorney.

As per the LTSA, LTSA Guidance for Witnessing Requirements under the Land Title Act During the COVID-19 Situation, dated March 24, 2020:

"Another acceptable option would be for individuals to sign an execution copy of a document in the presence of, but at a safe distance from, the officer who would apply his/her signature and officer details on an identical execution copy. If the Registrar requires the applicant to produce the execution copy under section 168.57 of the Land Title Act, having the two signatures on separate pages will not trigger any action against the designate who certified the document".

Stay tuned for tomorrow's post in the "New Normal" series, where we discuss some important issues related to remote witnessing of estate planning documents, including undue influence and duress.

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