Alberta and B.C. Allowing Virtual Witnessing of Estate Planning Documents During COVID-19

This blog was initially published on May 25, 2020.

Following in the footsteps of several other provinces, Alberta and British Columbia have announced that lawyers will be allowed to facilitate the virtual witnessing of wills, personal directives/representation agreements, and powers of attorney.

These temporary measures will provide solutions for individuals to safely complete their estate planning documents while maintaining social distance in an effort to prevent the spread of the virus.

UPDATE:

Since the initial publication of this Insight, both the Alberta and British Columbia governments have introduced legislation that propose to allow for the continued remote signing of estate planning documents.

Alberta’s Bill 24 would extend the applicable time period in which remote signing and witnessing is available following the procedures listed above, and allow for the Minister to prescribe additional time periods in which these provisions could be re-enacted in the future should our province experience a similar public health emergency. Additionally, the bill would provide for these estate planning documents to be signed in counterpart, an element missing from the initial ministerial order.

British Columbia’s proposed legislation takes these changes a few steps further into the modern age. These amendments would enable the courts to accept wills prepared and signed electronically by computer and for which there is no printed copy. Additionally, they would permanently allow for the virtual witnessing of wills. These changes would benefit British Columbians who are quarantined, have a disability, live in remote communities, or would have difficulty attending at a lawyer’s office for any other reason.

If passed, both of these pieces of legislation would not only provide for continued access to safe, socially-distant estate and care planning during the current COVID-19 pandemic, but also establish an expanded framework allowing for uninterrupted access to these important legal services at times when they are most needed. We will be sure to further update this Insight should either amendment be passed.

Alberta:

After extensive consultation with members of Alberta’s estate planning lawyers, on May 15, 2020 the Minister of Justice and Solicitor General made an order under the authority of the Public Health Act which temporarily amends the legislation governing wills, personal directives and powers of attorney. For the duration of the pandemic, requirements for witnesses to be “present” during the signing of estate planning documents will include those who are “present” via videoconference. Importantly, virtual witnessing is only permitted if an active Alberta lawyer is providing legal advice and services respecting the making, signing and witnessing of the document. Additionally, all parties must be able to see, hear and communicate with each other in real time. This order will be in effect until it is terminated by the Minister or 60 days after the provincial state of emergency lapses.

UPDATE: The Alberta Government Proposes to Continue Remote Signing of Estate Planning Documents.

British Columbia:

On May 19, 2020, British Columbia’s Minister of Public Safety and Solicitor General made two orders respecting the electronic witnessing of wills, enduring powers of attorney and representation agreements. Similarly to Alberta’s order, these orders deem electronic “presence” via videoconference acceptable for the purposes of witnessing estate planning documents. However, whereas in Alberta a lawyer must provide legal services in relation to the document, in British Columbia a lawyer or notary public simply must be a witness to the document. Additionally, estate planning documents made in accordance with these orders must include statements confirming that they were signed and witnessed in accordance with the respective order. These orders will be in effect until the provincial state of emergency expires or is cancelled.

Summary:

Though these orders provide options for people to get their affairs in order while maintaining social distancing, all parties should be particularly careful to ensure that all additional legislative requirements are satisfied and the signed documents are valid. However, with careful preparation, thoughtful legal advice, and precise execution, these new measures will allow lawyers to provide clients with estate planning services, and peace of mind, all from the safety and comfort of their own homes.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.