Bill 245, Accelerating Access to Justice Act, 2021 (“Bill 245”) received Royal Assent on April 19, 2021, bringing significant reform to Ontario estate law.
Virtual Witnessing of Wills and Powers of Attorney
In response to the outbreak of COVID-19, the Ontario government passed an emergency order, O. Reg 129/20, to temporarily permit the virtual witnessing of wills and powers of attorney so as to allow the public to execute those documents in a safe, socially-distanced manner. Bill 245’s amendments to the Succession Law Reform Act (“SLRA”) and the Substitute Decisions Act, 1992 sanction virtual witnessing as a permanent option available to the public going forward, should one prefer to execute one’s documents through a virtual platform rather than in person.
The requirements for a valid virtual witnessing of a will or power of attorney are as follows:
- at least one of the witnesses must be a licensee (paralegal or lawyer) of the Law Society of Ontario;
- the “audio-visual communication technology” used must enable the testator and witnesses to see, hear and communicate with one another in real time;
- the testator and witnesses must sign the documents contemporaneously;
- the counterpart copies of the will or power of attorney must be complete and identical (however, minor, non-substantive differences in format or layout between the copies are of no consequence); and
- any further requirements specified by the regulations must be met.
These changes will come into force on May 20, 2021, when O.Reg 129/20 expires.
Note that the requirements of Bill 245 and those of the temporary O.Reg 129/20 are not identical. In particular, O.Reg. 129/20 seemingly allowed for wills and powers of attorney to be signed non-contemporaneously by the grantor/testator and witnesses, such that the same physical document could be circulated to the witnesses, who would sign it after the date of execution. Bill 245, in contrast, requires “contemporaneous” signing.
Finally, keep in mind that while the documents may be witnessed electronically, they may not be electronically signed. In other words, wet signatures are still required on wills and powers of attorney by all parties; e-signatures are not permitted.