Witnessing Wills During Quarantine

The challenges of completing or revising your Will while in quarantine has emerged as a common topic amid the wider conversation of how lives are being affected by the coronavirus outbreak. Hopefully, necessity will once again become the mother of invention as the current, dated, wills legislation does not set out an express solution for this problem. Specifically, a will-maker must have two witnesses present when the Will is signed. Generally, it is assumed the legislation contemplates and requires the witnesses to be physically present.

It may still be feasible for most will-makers who (after having the Will drafted by their lawyer) simply need to find two people to stand the recommended 6 feet way and adhere to all the usual hand washing protocols. However this may be a challenge or some people who must practice strict quarantining. Perhaps these unprecedented times provide ample basis to revisit this strict requirement.

Some clarity on this topic may be coming. Globe and Mail reporter, Christine Dobby, reported recently that an Ontario court has agreed to hear, on an urgent basis, a case involving a will that was witnessed online. Specifically, the Court will consider whether such a Will might be considered to be properly executed, and under what circumstances. The case involves two wills made for an elderly couple, who are adhering to strict quarantine guidelines, requiring the will to be “witnessed” via an online video meeting platform.

Before now, caselaw has pondered whether the requirement that two witnesses be “present” for the signing of the Will extends simply to being “visually present.” So far, no case has clarified whether that may extend to a circumstance where one or both witnesses was in visual contact with the will maker by way of a web cam.

British Columbia also enacted s.58 of the Will, Estates and Succession Act, (“S.58”) which empowers the Court to confirm the validity of a non-compliant Will. It is assumed (although it has not been confirmed) that a Will witnessed in this way, though not formally valid, could be confirmed by the Court under this provision.

Further to the requirement that two people (who are capacitated adults and not beneficiaries under the Will) witness a Will, the will-maker must also understand the process and otherwise have adequate mental capacity to complete the Will. It may be feasible to accomplish that step over a virtual meeting platform. If it is not feasible to find two people to witness the Will, steps can be taken by the lawyer to make sure the Will and process are as robust as possible in case a later application must be made under S.58. Of course, the outcome still remains uncertain and could be vulnerable to attack by a disappointed heir.

We will be watching for the outcome of the case in Ontario and then seeking to apply the same principle in British Columbia.

Until then, there remains some uncertainty as to whether a remotely witnessed Will may be found valid in British Columbia.