Authors: Sam Amelio, Q.C., Ariel Lekas, Justin Di Liello
Estate planning professionals often hear that their clients “just don’t have time” to complete a will. These clients frequently emerge with renewed motivation to complete their estate plans when faced with imminent travel plans, the death of a loved one who did not have his or her affairs in order, or an unexpected illness.
Similarly, as a result of the COVID-19 pandemic, perhaps you are concerned about getting your affairs in order and providing for your family and finances in the event of illness or death. Mandated social distancing may present certain challenges, but it also presents an opportunity to consider your wishes, consult with your lawyer, and implement or update your estate plan.
Considering Your Wishes:
Whether or not you currently have a will, the first step in preparing or updating one is to think about your wishes.
- Who do you trust to act as your executor?
- Who would you like to benefit from your estate?
- Do you have any dependent family members?
- What type of assets do you have, and where are they located?
- Do you run a business?
Discussing the answers to these questions with your lawyer will ensure that all relevant considerations are taken into account and that your family, finances and business interests are provided for and dealt with in a practical and tax-efficient manner.
A personal directive and enduring power of attorney are just as important as a will, as they allow you to appoint someone to handle your personal and financial affairs if you fall ill or are otherwise unable to make decisions. The person or people you ultimately decide to appoint as agent and attorney should understand your wishes and values and be trusted to act in your best interests. An estate planning professional can explain the duties and responsibilities of these crucial parties to help you make an informed and responsible decision when choosing your appointees.
Signing the Documents:
Providing your lawyer with instructions via telephone or video conference is relatively straightforward, and draft documents can be circulated and discussed via email. However, when it comes to executing the finalized documents, current Alberta law has strict rules governing the proper signing and witnessing of wills and powers of attorney. If these rules are not followed, your documents may not be valid or accepted by banks, Alberta Land Titles or the courts.
Given the current social distancing requirements mandated by our government, we have developed several creative and flexible methods to ensure proper execution of your estate planning documents if an in-office meeting is not practical, recommended or possible. These methods include “drive-thru” or in-person signings whereby your signature is witnessed through a car, glass door or window. Alternatively, you can ask friends or family who are not beneficiaries of your will to act as witnesses from an acceptable social distance while we guide you through the signing process via video conference.
Unfortunately, there may be certain circumstances in which individuals do not have access to permitted witnesses, or any witnesses at all. All hospitals and many long-term senior facilities in Alberta are no longer accepting visitors, and health professionals and care staff may be unable or unwilling to act as a witness. In these cases, a will can still be signed; however, these unusual circumstances (i.e. the pandemic) should be addressed in the will and it will be up to a judge’s discretion as to whether or not the will is valid upon the death of the testator. Given the unprecedented nature of this pandemic, we are hopeful that the courts will be lenient as long as the testator’s intentions, capacity, and reasons for irregular execution of the will are well-documented.
On April 15, 2020, the Ontario provincial government announced that it would be permitting virtual witnessing of wills and powers of attorney under the Emergency Management and Civil Protection Act. While the Alberta government has not yet implemented any similar measures, changes may be coming soon and we will be sure to update this Insight accordingly.
Though these times may feel uncertain, perhaps some measure of stress can be alleviated by implementing an estate plan and ensuring your family and finances will be taken care of in the event of your illness or death. With thoughtful and considered documents and the proper execution, your COVID-19 estate plan will hopefully provide you with peace of mind during these extraordinary times and serve you for many years to come.
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.