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If you own property of any kind, you need a “Last Will and Testament” (also known more simply as a “Will”) to set out your wishes with respect to how your property should be distributed when you pass away. A Will is a key to ensuring your wishes are carried out in the way that you originally intended.

What is the difference between a testamentary trust and a living trust?

A testamentary trust is a trust created by the grantor’s will after they pass away, whereas a living trust is one created by the grantor during their lifetime.

Does a Last Will and Testament need to be notarized?

A Last Will and Testament does not need to be notarized in order to be valid, but it must be signed by the person who created the will (testator or testatrix) as well as witnesses.

What is probate?

Probate is the judicial process by which a will is proved in a court of law and validated as a document that is the true last testament of a deceased individual.

What happens to real estate without a Will?

Without a Will, your estate may be in limbo upon your death until either the government or a person (not necessarily someone you would choose) is appointed as estate trustee to look after your assets. This may result in delays, further expenses, and/or other complications.

Furthermore, without a Will clearly stating who you want your beneficiaries to be and what they are entitled to, Ontario’s Succession Law Reform Act sets out a default scheme for who the estate will be distributed to as well as the percentage/monetary allocations.

Wills must be signed by a testator in the presence of two witnesses who are not beneficiaries of the will. Powers of attorney must be signed by the grantor in the presence of two witnesses. Neither witness can be the attorney named or his/her spouse or partner, the spouse, partner, or child of the grantor of the power nor someone they treat as a child, a person who is under guardianship or who has a guardian of property, or a person under 18 years of age. If these strict requirements are not followed, the will or power of attorney may be invalid. In addition, one of the witnesses must swear an affidavit of execution in the presence of a commissioner of oaths. This document forms part of the probate application to the court and should be done right after the signing.

The will can be sent to the testator and the witnesses to be printed out, along with a list of detailed execution instructions to be reviewed by them beforehand. If the parties do not have printing capabilities in their respective homes, the lawyer can courier printed copies to their homes. The lawyer can then use Zoom or other high definition videoconferencing applications to video conference into the meeting, explain the provisions of the documents and oversee the meeting to ensure that the signing is done correctly. When watching the signing virtually, the lawyer must be sure the documents being signed are the ones that the lawyer prepared. If possible, the lawyer should ensure that he or she can see what is being signed to confirm no changes have been made.

The lawyer should also ensure that the testator/grantor of the power understands and appreciates the contents of the documents, that the documents reflect their wishes, is under no undue influence and that there are no suspicious circumstances surrounding the completion of these documents. It is important to ensure that these documents reflect the client’s wishes. It is at times like these that lawyers must be even more vigilant in taking instructions from clients, especially if they are unwell, to ensure they are providing instructions without the influence of others. It may also be prudent to take an electronic recording of the entire signing for the file.

As noted above, our legislation has always required that two witnesses to the signing of the will be physically present with the testator. However, on April 7, 2020, an emergency order was made under the Emergency Management and Civil Protection Act to permit the virtual witnessing of wills and powers of attorney over audio-visual communication technology during Ontario’s state of emergency. If the will is witnessed virtually, one of the witnesses must be a licensee of the Law Society of Ontario at the time of the signing. The order is not retroactive and does not allow e-signatures.

At the time this article was submitted, the emergency order was just made in Ontario. It remains to be seen how wills and powers of attorney can be executed through virtual witnessing and what procedures should be followed to ensure that the documents are witnessed properly. It is unlikely that signing in counterparts is permitted and several issues remain unclear. Are multiple virtual meetings required to observe each witness sign the same original document? Must the witnessing be done at the same time and on the same date, and how should the corresponding affidavits of execution be changed?

In Ontario, if neither witness is a licensee of the Law Society of Ontario or virtual witnessing is not possible, then the testator will need to bring in two individuals that they are comfortable with who are not beneficiaries of the will (perhaps a trusted neighbour or family member who has also been responsibly practicing social distancing) to witness the will in their physical presence. Each party should bring their own pen and stay six feet away from each other. The signing can be done outside with the documents on a garden table, and each person in the yard, six feet away from the table, watching the signing and stepping up to sign as appropriate, again with their own pens.

Finally, one of the witnesses can swear the affidavit of execution remotely in front of a commissioner of oaths. In ordinary times, swearing of affidavits of execution must be done in the physical presence of a commissioner of oaths. However, as a result of COVID-19 and until further notice, the Law Society of Ontario will permit commissioning via video conference. The lawyer must change the jurat to reflect how the document was witnessed. We have also been requesting that the person confirm the contents of the document by email. This statement by the Law Society of Ontario is not a change to the legislation, but does give some comfort. 

The shockwave of COVID-19 is making its way through Canada’s economy, depressing the valuations of most businesses. However, like an investor “buying the dip” when the markets crashed and subsequently recovered during previous recessions, a properly timed estate freeze or refreeze can turn the adversity of a significantly depressed economy into a tremendous opportunity for Canadian business owners looking to plan for the future of their families and businesses.

We recommend consulting a professional tax planner to discuss if an estate freeze or refreeze may be beneficial for your business. There are a variety of methods that can be used to implement these reorganizations, with techniques tailored for each individual’s estate and tax plans, to establish the most advantageous position for a rebounding economy.