As the number of people infected with COVID-19 continues to climb, and the number of deaths unfortunately also continuing to escalate, many people have begun to worry about their own health or that of their loved ones. As people begin to face their own mortality en masse, many are realizing the need to update or create their estate plan, out of an abundance of caution. The problem is that emergency orders put into place by the provincial and federal government are severely limiting people’s ability to create a Will or Representation Agreement that is considered valid under the B.C. Wills, Estates and Succession Act (WESA).
Requirements for a Valid Will or Representation Agreement in British Columbia
While a Will allows a testator to direct how their estate will be distributed after death, a Representation Agreement enables a person to appoint someone they trust to make medical and healthcare decisions on their behalf should they become incapacitated. Both documents are essential, particularly in a time when the world at large is facing an unprecedented health crisis.
The requirements for a valid Will or a representation Agreement are mandated by legislation and both require documents to be signed in the presence of two witnesses. The requirements for a Will are set out under s. 37(1) of the WESA as follows:
It must be:
(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more of the witnesses in the presence of the will-maker.
In addition, the prescribed forms necessary to create a valid Representation Agreement with respect to health and personal care decisions also require the signature of two witnesses.
Of course, due to the pandemic, the government of British Columbia has declared a state of emergency, limiting gatherings of people who do not live together, and asking everyone to stay home unless required to leave for an essential reason, such as procuring food or medication. This leaves few options for those needing to draft and execute a document requiring multiple witness signatures.
It is certainly open to any testator to write down their wishes with respect to their estate without carrying out the formal requirements of witness signatures. Courts in B.C. have broad discretion under the WESA to give legal effect to any document that appears to represent the author’s testamentary intentions. However, while this may work in a pinch for simple estates with one or two beneficiaries, it can become complicated when an estate is more complex. If the testator is a business owner, or holds several investments, or requires a trust, it may be necessary to bring in the expertise of a skilled estates lawyer to provide guidance and draft the language needed to accomplish the testator’s wishes.
Legal Professionals Seeking Change Under the Circumstances
In light of the current circumstances, many legal professionals are pushing for change around the requirements for signing Wills and other estate planning documents. While the legal profession has adapted to allow for virtual signatures in certain cases, this is one area that continues to mandate all signatures be obtained in person, and that witnesses be present along with the testator.
Kavina Nagrani, chair of the Canadian Bar Association’s Elder Law section, is pushing for a change to allow immune-compromised or elderly clients, in particular, to use virtual signing technologies to execute Wills and other estate documents without additional risk to their health. While a key concern with the execution of an estate document is the potential for coercion, this can also be the case even when documents are signed in person. Video conference technology allows people to interact almost as if they were in a room together, closely mimicking the atmosphere of an in-person meeting, making the circumstances nearly identical.
While the legal profession can be slow to evolve in certain respects, the current pandemic is forcing change in a number of industries. These changes to signature regulations may become necessary in order to allow clients the opportunity to maintain control over their estates and their decision-making even in a time of crisis.
The estate lawyers at Cherkowski Marsden LLP in Vernon are extremely knowledgeable with respect to all aspects of estate planning and Will drafting. They have extensive experience drafting countless custom estate plans that range from simple to highly complex. For questions and advice about your estate planning needs, please contact their office online or by phone at 250-308-0338 (Vernon office) or 250-803-9171 (Salmon Arm office) to schedule a consultation.