By David Christianson, BA, CFP, R.F.P., TEP, CIM
Sr. Advisor at Christianson Wealth Advisors, Sr. VP and Portfolio Manager, National Bank Financial
In my experience, more wills have been signed just before vacations and travel than at any other time. People tend to procrastinate with their estate planning. I suppose that’s understandable. The fact that many people overcome their procrastination just before travelling is irrational, but nevertheless useful. Now, in the time of COVID-19 and no international vacation travel, we need a new incentive to overcome such procrastination. Not to be morbid, but perhaps a global pandemic killing thousands is a pretty good incentive? Signing a will or codicil is normally a formal process, requiring two witnesses in the same room to initial each page and sign the document. However, with many lawyers’ offices closed and many professionals working remotely, can you have a will prepared and then signed and witnessed now? The answer is yes. To get the facts, I reached out to former Winnipeg Free Press columnist and nationally known estate lawyer John Poyser. I also reviewed COVID-19 guidelines issued to lawyers by the Law Society of Manitoba. “It’s really a call to action,” Poyser said, “and there are a variety of ways to consult, prepare and execute wills, codicils, powers of attorney and advanced health care directives.” Poyser said that his practice at Traditional Law LLP, and that of many other Manitoba lawyers, has been to offer flexible service delivery models, including:
- initial meeting by teleconference or videoconference;
- email or delivery of documents for clients to review at home;
- adjustments and finalization by teleconference or videoconference.
For execution (signing), some law offices are open with careful disinfection protocols, thus allowing conventional formal signing. Some lawyers, including Poyser’s office, provide house calls with appropriate precautions, for clients who choose that option. Signing the will can be done in a person’s home without the lawyer present, with other appropriate witnesses. However, there are rules around who can act as a witness. The signing process could be supervised remotely by the lawyer, by video, FaceTime or phone. In an emergency, execution can be conducted with no social contact. That means no witnesses present in the room. The witnesses could attend by video. Proceeding without witnesses present will require a court application; “Section 23 of The Wills Act allows for the courts to uphold as valid a will that was executed without the usual formalities, if the circumstances are extraordinary and the intent of the testator can be clearly established,” Poyser explained. Court can be avoided if the person survives and is able to re-sign a will in the conventional manner after the crisis has passed. Rather than waiting for an emergency, the main point Poyser made, with which I agree, is that there is no reason to wait for an emergency and put off preparing and signing a will if you need one, nor updating one that is out of date. In fact, the COVID-19 pandemic may be an incentive to get it done. If you need to conduct other legal business, such as land titles and conveyances, lawyers are prepared to move forward in the midst of the pandemic, and law firms are considered an essential service. Stay safe and keep physically distant. #InThisTogether Dollars and Sense is meant as an introduction to this topic and should not in any way be construed as a replacement for personalized professional advice. David Christianson, BA, CFP, R.F.P., TEP, CIM is recipient of the FP Canada™ Fellow (FCFP) Distinction, and repeatedly named a Top 50 Financial Advisor in Canada. He is a Portfolio Manager and Senior Vice President with Christianson Wealth Advisors at National Bank Financial Wealth Management, and author of the book Managing the Bull, A No-Nonsense Guide to Personal Finance.
