Since April 2021, the Substitute Decisions Act and the Succession Law Reform Act were amended to permit the virtual execution of wills and powers of attorney documents by videoconference. The Law Society of Ontario (“LSO”) lists the specific requirements for proper remote execution, including the requirement that one witness must be a LSO licensee and all required signatures must be made contemporaneously. The LSO provides helpful checklists to ensure the correct execution of estate planning documents.
Aside from the formal requirements for proper execution of wills and powers of attorney, solicitors are also tasked with assessing capacity when asked to prepare and execute wills and powers of attorney. Assessing capacity while not in the same room as the testator/guarantor can be challenging. Earlier this year, LawPro presented a program on practicing law virtually that discussed remote interviewing for capacity and undue influence.
Some factors to consider include;
-Noting if your client is reading from a script or has notes;
-Being aware if there is an “influencer” off screen but nearby;
-Being mindful of your client’s technological limitations;
-Insuring that visual, hearing and audio technology is working properly during a videoconference;
-Understanding that certain nuances may be lost during a video conference and that an in person meeting may be required; and
-Considering the possibility of making an audiovisual record of the client’s instructions/interview.
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