Saturday, May 09, 2020

Making a Will in British Columbia if in Isolation During the Covid-19 Pandemic

[Since I wrote this post, the British Columbia government has made an Order permitting electronic witnessing of wills during the Covid-19 emergency, rather than the process I have set out below. See my more recent post. However, the discussion below may still be relevant after the Covid-19  state of emergency ceases in certain (although rare) circumstances.]

Although I much prefer to meet in person with clients to discuss their estate plans, I am getting used to video conferencing or taking instructions by telephone during this covid-19 pandemic. It seems to work well enough most of the time, but what about signing wills?

British Columbia has certain formal requirements for making a valid will. These are set out in section 37 (1) of the Wills, Estates and Succession Act:

37  (1)To be valid, a will must be
(a)in writing,
(b)signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c)signed by 2 or more of the witnesses in the presence of the will-maker.
 As at the date of this post, in contrast to some other places, British Columbia has not made any law providing for virtual witnessing of wills, by audio-visual communication, such as skype or zoom. It is necessary to for the two both witnesses to be in the same room when the will-maker either signs or acknowledges her signature. Alternatively, all three could be outdoors within sight of each other.

There is no requirement that the lawyer who drew the will be one of the witnesses. Accordingly, if the lawyer cannot practically attend to witness the will, either because of distance, or because of social distancing during the covid-19 pandemic, the lawyer may provide instructions on how to sign the will, and two others may witness the will. It is important, however, that neither a beneficiary or the spouse of a beneficiary witness the will, because that may invalidate the gift in the will to the beneficiary.

There may be situations where someone is in isolation and cannot get two people to witness the will. What should she do?

I suggest the following:

First, the lawyer should go through the will by audio-visual technology or by phone. The lawyer should confirm that the will reflects the will-maker’s intentions, and make good notes. The lawyer should also make a statutory declaration setting out the circumstances and the fact that the will-maker stated that the document reflects her intentions.

Second, the document itself should contain language indicating that the will-maker intends the document to be effective. I suggest something along the lines of “I am signing this document without any witnesses because I am in isolation during the covid-19 pandemic. This document reflects my deliberate, fixed and final intentions in respect of my appointment of executors and the disposition of my assets. I ask the court to give effect to this document pursuant to section 58 of the Wills, Estates and Succession Act.”

Third, the will-maker should sign and date the will at the end, and initial the bottom of each of the other pages.

Fourth, the will-maker should keep the document in a prominent place where it can be easily found, and advise the lawyer and her executors where she is keeping it.

Fifth, as soon as practical, the will-maker should sign another will in the presence of two witnesses in compliance with section 37 (1) of the Wills, Estates and Succession Act.

But if the will-maker passes away before she is able to complete a will in the presence of two witnesses, her named executor, or another person, may apply under section 58 of the Wills, Estates and Succession Act to the Supreme Court of British Columbia to give effect to the document as the last will despite the fact that it does not comply with section 37(1). Although the applicant seeking approval of the document would have good evidence in support of the application, this is a much more costly process than probating a will that complies with section 37 (1). Accordingly, this approach should be used as a stop-gap and the will-maker should sign a will in the presence of the two witnesses as soon as she is able.

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