For hundreds of years, the basic rules for making a valid will have been the same: the person making the will has to sign it in the company of witnesses, and the witnesses have to sign, too. How can that requirement stand when we’re supposed to stay apart? Is it OK to sign and witness a will with everyone two metres apart from one another and wearing masks and even gloves?
Signing with COVID-19 precautions like distancing and wearing safety gear is legally valid, but not always practical. You’re passing around a paper document, and possibly sharing a pen. As we move into the winter months, it becomes less likely that you’ll all gather outside to sign. Signing indoors, despite social distancing and personal protection equipment, is still considered a greater risk than staying home.
Many of us have become far more familiar with videoconferencing technologies this year than we ever expected to be. How many of us had a Zoom seder or a Skype Rosh Hashanah dinner? Why can’t we update a centuries-old practice for the 21st century, especially given the COVID-19 crisis? We can.
The British Columbia government, as part of the emergency measures brought in this year, made changes to the rules for executing wills to accommodate pandemic precautions, and has also made those changes permanent. The Wills, Estates and Succession Act, which governs how we make wills, was amended to include two new sections on something called “electronic presence.”
The basic rules are still the same – the will has to be signed by the person making the will and by two witnesses, all witnessing one another more or less simultaneously, but they can sign separate paper copies – to be put together and treated as one original document – as long as they are in each others’ “electronic presence.” In other words, it should be the “witnessing a will” version of that Zoom seder.
Like everything with a will, there are technical details and you should always get professional guidance, but it is reassuring that you can remain safe, while attending to your critical planning needs.
Jeremy Costin is a business and estates lawyer practising in Vancouver. He sits on the board of directors and the governance committee of the Vancouver Holocaust Education Centre, and is a frequent guest instructor at the Law Society of British Columbia.
(Disclaimer: This article should not be construed as legal advice. Only your lawyer can give you proper advice specific to your needs.)