The introduction of the COVID-19 pandemic in Ontario has led to huge changes in the ways we do things. While the legal world can be slow to adapt to change, Ontario’s estate planning rules adopted fairly quickly to make ways for people to sign and witness wills. Prior to COVID-19, a testator could gather with a lawyer and witnesses in a room in order to sign wills or codicils (additions to wills). Of course, that went out the window once quarantine and social distancing rules were put into place. As we will soon see, there were changes made to allow for remote witnessing of documents, but in a recent decision from the Ontario Superior Court of Justice, it is important to have a good understanding of what exactly these changes were, because a failure to follow the new rules can result in legal troubles.

Codicils to a will are put in place during COVID-19

The issue began when the executor named in the will attempted to obtain a Certificate of Appointment of Estate Trustee. He was the executor of the testator’s first will and codicils (there was also a secondary will in place). However, upon his application, the circumstances surrounding the execution of the third codicil caused concern.

The third codicil was executed on June 23, 2020. The witnesses to the will were located in Sudbury, while the deceased was located in Mississauga. The witnesses and the testator spoke on the telephone when the testator reviewed and signed the codicil. That same evening, the codicil was sent to Sudbury via Purolator for overnight delivery. The witnesses then signed the last page of the codicil and it was presumably sent back to the testator.

Rules for witnessing wills do not allow for courier delivery

The court stated that the problem with the way the codicil was signed is that the Succession Law Reform Act requires a witness to be in the presence of the testator when it is being signed. Since this was not possible (and in many places is still not possible) during much of 2020, the Emergency Management and Civil Protection Act was amended to include a way for witnessing to be done remotely. The amendments state that a testator may meet with witnesses via audio/video conferencing. The witnesses must have identical copies of the will or document being signed. They must sign their copy (or copies) and send them back to be attached to the testator’s copy, which together can form a single document.

Unfortunately for all involved, this was not the process that was followed by the testator and witnesses in this instance. While they met via telephone, the codicil was couriered to the witnesses for them to sign rather than having them sign copies of the same document over audio/video conference. As a result, the document was not valid and the court refused the executor’s application.

If you have been appointed a trustee, executor, attorney for property, or attorney for personal care, contact Derfel Estate Law to speak with an estates lawyer. We regularly provide guidance to fiduciaries to ensure they are carrying out all of their obligations and making decisions that are in the best interests of testators or grantors, while minimizing the fiduciaries’ legal risks. Call us at 416-847-3580 or contact us online to schedule a consultation.