By: Patrick Hartford
With COVID cases spiking and cities re-entering lockdown, we can assume that the Ontario government will continue to extend its emergency orders allowing the remote signing and witnessing of wills.
These emergency orders, introduced during the first wave of the pandemic, were introduced to address the health risks of witnessing and signing wills in person during a pandemic. This was a departure from centuries of legal tradition, but estate planning is meant to plan for your death, not hasten it.
Under the emergency orders, wills (and powers of attorney) can be signed and witnessed via videoconference, with everyone signing in counterpart in the virtual presence of one another. The signed documents are then couriered back to the lawyer. Needless to say, this process is not saving any trees. And while these measures were a step in the right direction, the headache of couriering multiple paper documents has resulted in many lawyers opting for socially-distanced in-person signings.
Where does Ontario go from here?
In August, Attorney General Doug Downey consulted the legal community about modernizing wills and estates. One of the topics for discussion was making the emergency orders permanent. But there is an opportunity here for Ontario to move beyond half-measures and implement a robust electronic wills regime.
Discussions about electronic wills always involve questions about security and fraud. How can we rely on an electronic record? I would turn this question on its head and ask how can we rely on paper? Paper wills are regularly lost, damaged, destroyed, forged, and tampered with. With the right regulatory framework, electronic wills can improve on the status quo.
For example, we could require electronic wills to be stored with a regulated service provider. Such a ‘qualified custodian’ would be responsible for maintaining strict security measures, keeping detailed records, and complying with data residency laws. The provider could ensure that an electronic record is never tampered with and never goes missing.
We could also require that one of the witnesses of an electronic will is a lawyer. This lawyer could swear an affidavit confirming that they verified the identities of the parties, inquired into the capacity of the testator, and kept an eye out for undue influence. The affidavit could even be scanned and uploaded to the qualified custodian alongside the will.
The technology exists to do electronic wills properly. We can create an alternative to paper wills that bolsters security, better safeguards against fraud, and ultimately makes estate planning more accessible. It’s an exciting opportunity.
ABOUT THE AUTHOR
Patrick Hartford is the Founder of NoticeConnect a platform designed to connect public legal notices with their intended audiences. Patrick was called to the Bar in Ontario in 2016.
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