Wills and Estate Planning in a COVID-19 World
There are moments in life when people begin to think about doing or redoing their Wills.
For young couples the birth of a child is frequently the moment. For baby boomers the loss of a contemporary at a much too young age or the death of a parent is that moment. For the parents of baby boomers the desire to ensure their affairs are in order is that moment.
We now have a new “moment”: COVID-19. As the world continues to deal with this pandemic many are struggling with an uncertain future both financially and from a health perspective.
At Bell Alliance LLP we have received a number of enquiries from families anxious to do or redo their Wills. However, many people are also expressing concern about how to finalize Wills without taking undue risks to their health.
Currently under provincial legislation, the Wills, Estates and Succession Act, a valid Will requires witnessing by two individuals who are not beneficiaries or spouses of beneficiaries. The two witnesses must be present when the will maker signs the Will. The witnesses are not only physically present but are touching the Will that has been touched by the will maker as well as each of the witnesses, thereby creating the risk of transmission.
The concern of transmission may make some individuals reluctant to move forward with their estate plan.
To respond to concerns about transmission we have developed two processes to assist our clients and anticipate that the provincial government will shortly approve a third process.
In Person Witnessing: We are currently fully operational but conduct most estate planning meetings by telephone or video conferencing. Based on the information provided by the client we forward a draft Will. Once the Will is approved we arrange a time for clients to meet at our office with proper safeguards such as physical distancing and sanitized facilities. Alternatively, we assist the client in the proper execution process where there are two independent witnesses available at the client’s home.
No Witnessing: In some instances clients are reluctant to come to our office or have other individuals witness their Will. In these situations we recommend that clients sign their Wills without witnesses. S.58 of the Wills, Estate and Succession Act provides that a court may “cure” a deficiency in the making of a Will. It is a fairly simple court application. The document signed without witnesses is thereby validated as the Will of the deceased.
Once the impact of the pandemic lessens we would then have clients come to the office to formally sign their Will. However, in the event that a client passes prior to being able to have their Will properly witnessed they have at least ensured that their wishes for distribution of their estate is achieved.
Video Witnessing: The B.C. Provincial government is considering introducing a Ministerial Order enabling Wills to be witnessed through video conferencing technology. The Ontario Provincial government has already approved video witnessing and it is our hope that British Columbia will follow shortly. We will update this information if the change is instituted.