ARTICLE
24 September 2020

Ensuring The Validity Of Wills Sworn During The Covid-19 Pandemic

AH
Alexander Holburn Beaudin + Lang LLP
Contributor
Alexander Holburn is a leading full-service, Vancouver-based law firm providing a wide range of litigation, dispute resolution and business law services to clients throughout Canada and abroad. We have a proud 45-year history, with 85+ lawyers providing thoughtful, practical legal advice to governments and municipalities, regional, national and international companies, and individuals in virtually all areas of law.
It has been a long-standing requirement that in order to create a valid Will, the will-maker must sign the Will in front of two independent witnesses. Since March 2020...
Canada Family and Matrimonial
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It has been a long-standing requirement that in order to create a valid Will, the will-maker must sign the Will in front of two independent witnesses. Since March 2020, the execution of Wills and other estate planning documents has become more complicated as a result of the COVID-19 pandemic. Social distancing guidelines and concerns about the risks of meeting in person may make it difficult for a will-maker and the two required witnesses to all sign a Will in each other's physical presence.

On May 19, 2020, temporary Ministerial Order No. M161 came into effect, allowing Wills to be validly executed where the will-maker and two required witnesses are simultaneously connected by videoconference technology. Subsequently, amendments to the Wills, Estates, and Succession Act ("WESA") were made to allow for Wills to be signed and witnessed by videoconference technology, regardless of BC being in a declared state of emergency. The WESA amendments apply retroactively to Wills made on or after March 18, 2020.

These measures give will-makers more options to safely execute valid Wills. However, they do not validate any improperly witnessed Will that was made before the measures took effect. Any attempt to make a Will that does not comply with the appropriate legislation should be re-executed in accordance with the new legislation. During the signing, the will-maker and the witnesses could either be physically present together, or one or more of them could be connected by videoconference.

If a document is not properly signed before the individual's death, it is possible for that document to be cured by an application under section 58 of WESA. Section 58 provides that the BC Supreme Court may order that a document that does not comply with WESA is fully effective as though it had been made in accordance with WESA. However, this process is costly (requiring a court application and supporting evidence) and uncertain.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
24 September 2020

Ensuring The Validity Of Wills Sworn During The Covid-19 Pandemic

Canada Family and Matrimonial
Contributor
Alexander Holburn is a leading full-service, Vancouver-based law firm providing a wide range of litigation, dispute resolution and business law services to clients throughout Canada and abroad. We have a proud 45-year history, with 85+ lawyers providing thoughtful, practical legal advice to governments and municipalities, regional, national and international companies, and individuals in virtually all areas of law.
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