Between social distancing and health regulations, many essential service providers have pivoted their business operations to keep people safe.
As a law firm that prepares many official, and often essential, documents, we have also had to shift the way in which we interact with our clients, specifically when it comes to signing their last will and testament. Given the unfortunate fatal potential of Covid-19, having your estate plan and documents in place can ensure that your assets are allocated as you wish. Perhaps providing a small source of peace of mind during an uncertain time.
In order to provide this service for our clients, there are several options that we are offering to keep our clients safe but also ensure that our processes meet the Nova Scotia Barrister's Society (NSBS) mandates.
The Presence of Witnesses
The Wills Act specifies that the will document must be signed “in the presence of” two witnesses. There are certain people who cannot be a witness including the beneficiary and the spouse of a beneficiary. However, there is nothing that states that the witnesses must be lawyers. If you are already in a 'bubble' with two people who fit the criteria, then they may witness your signatures on the document. In this case, one of the witnesses would later need to sign an affidavit of execution confirming they had been a witness to the will.
The Powers of Attorney Act requires only that the document be witnessed. Again, the witness does not need to be a lawyer. We will typically include an affidavit of spousal status with the power of attorney document. This affidavit would need to be signed before a lawyer at a later date.
The Personal Directives Act states that the signing of a personal directive must be witnessed by someone other than a delegate or a spouse of a delegate. The witness does not have to be a lawyer.
Video Conferencing
If you have access to a computer, printer and scanner, videoconferencing is an option. Videoconferencing is not generally recommended by the NSBS for the execution of Wills, Powers of Attorney, Personal Directives or other documents. However, in the circumstances and as a last resort to avoid personal contact, videoconferencing can be employed to assist clients in securing these important documents. However, the Society has encouraged lawyers who employ videoconference to provide a written direction to clients recommending that the clients come into the lawyer’s office to re-execute the documents in person once the public health recommendations for isolation have been lifted. We must also advise clients that a court or other agency may not accept documents executed via videoconference.
In Person Meetings
In circumstances where neither of the previous options will work, we will consider doing an in-office meeting. Such a meeting would have to take place during evenings or weekends when our staff are not in the office. These times of the week are typically quieter which also allows time for a full sanitation between client visits. This scenario does require that the client bring a second witness to the meeting for the signing of the will as our staff is not present. As a safety precaution, everyone who enters our building is subject to a short screening process that involves answering some basic questions.
What this means
These are uncharted times for everyone. As a result, many lawyers are adding special clauses to wills stating that it was created during a pandemic and while not all formalities have been followed, the document reflects their final wishes. Lawyers are operating at a heightened level of due diligence as they are often taking instruction for these documents over the phone or via email, making it more difficult to assess capacity and duress. On a positive note, this shift in procedure has pushed many in our profession outside of their comfort zones by encouraging a stronger technology literacy, levelling out the playing field and laying the ground work for the discussion on how distance or remote signing might look in the future.
If you'd like more information on preparing your will, our Estate Lawyer, Kathleen Lumsden would be happy to help with any questions you may have.