“New Normal” – Remote Witnessing for Wills and Powers of Attorney
We are jumping ahead a couple of topics in our blog series “New Normal” given a recent Ministerial Order.
Over the last couple of months, estate planning practitioners have been grappling with how to assist their clients in making their wills, representation agreements, and powers of attorney while simultaneously ensuring the safety of themselves and their clients, and abiding by social distancing recommendations. British Columbia’s Minister of Public Safety and Solicitor General made ministerial orders today, May 19, 2020, which permit electronic witnessing of wills, powers of attorney, and representation agreements until the state of emergency expires or is cancelled.
If a will is made in accordance with Ministerial Order No. M161, the execution requirements set out in section 37 of the Wills, Estates, and Succession Act are satisfied (MO No. M161, s 3(1)).
The will may be signed and witnessed while the will-maker and the witnesses are in each other’s electronic presence (MO No. M161, s 3(2)). It is of note that this does not prevent any of the will-maker or witnesses from being in each other’s physical presence (MO No. M161, s 3(3)). This means, for example, that if the two witnesses are in each other’s physical presence and they are both in the electronic presence of the will-maker, the fact that the two witnesses are physically present with each other does not preclude them from acting as witnesses.
At least one of the witnesses must be a lawyer or a notary public (MO No. M161 s 3(4)) and there must be a statement in the will that it was made in compliance with Ministerial Order No. M161 (MO No. M161 s 3(7)).
Complete and identical copies of wills made this way can be signed in counterpart by the will-maker and the witnesses (MO No. M161 s 3(5)), and copies are considered identical even if there are non-substantive differences in the format between the copies (MO No. M161, s 3(6)).
Powers of Attorney and Representation Agreements
Powers of attorney made in accordance with Ministerial Order No. M162 satisfy the witnessing requirements of the donor’s signature (sections 16(1) and 16(2) of the Power of Attorney Act) and the witness’ signatures (section 17(1) of the Power of Attorney Act). In order to be in accordance with Ministerial Order No. M162, the witnessing requirements for a power of attorney are much like those of wills, as above.
Ministerial Order No. M162 also allows for representation agreements to be witnessed electronically. The witnessing requirements specified in section 13 of the Representation Agreement Act are satisfied if the requirements in Ministerial Order No. M162 are followed. Again, the witnessing requirements are much like those for powers of attorney and wills, above.
Estate law practitioners across the province can breathe a sigh of relief in light of these two ministerial orders. This said, lawyers ought to be particularly cautious of meeting all the requirements in Ministerial Orders No. M161 and No. M162 and should pay close attention to the expiration of the state of emergency (Emergency Program Act). A helpful resource that lawyers should also consider is some best practice tips by the Law Society of British Columbia on video conferencing technology.