With the digitalization of the practice of law, it is imperative that all lawyers familiarize themselves with current legislation regarding what documents may be executed remotely and in what circumstances a digital signature can be enforceable.
Under the Electronic Commerce Act, 2000, SO 2000 c 17, section 31, the following documents cannot be executed electronically:
- Wills
- Codicils
- Trusts created by Wills or Codicils
- Powers of Attorney, with respect to an individual’s financial affairs or personal care
- Negotiable instruments (such as promissory notes)
Testamentary documents can, however, be witnessed remotely, provided certain conditions are met. Lawyers must ensure that:
o Signatures and acknowledgements of signatures of the testator and the subscribing witnesses are done contemporaneously
While the legislation allows for minor variance in the printed versions from the testator and the witnesses, lawyers should consider the below best practices recommendations:
- The testator should be provided either a PDF to print themselves or be couriered a printed copy of the document from the drafting lawyer
- The testator should initial each page, to ensure that the document received back to the drafting lawyer is the same as which was executed on the video conference
- If both the licensee and the second witness are in the same location, paper can be saved by the two witnesses executing the same copy of the document
- The affidavit of execution should have the testator’s signed Will stamped as “Exhibit A” to the affidavit
Lawyers are encouraged to review the Law Society of Ontario’s FAQs for remote execution and risk assessment for whether remote signing and witnessing is appropriate, as well as their Practice Management Resources for virtual meetings
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