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Can The Execution Of A Will Be Witnessed Over The Phone? – How Far Will The Court Go In Adapting The Formalities Of Execution During Covid-19

Covid-19 has forced all of us and our institutions to adapt in unprecedented ways. The laws governing wills and estates are no exception. This blog explores some of the changes that Ontario has enacted, some temporary and others permanent, to allow for video conferencing during the execution of testamentary documents. In particular, we look at the limits that one recent case put on those changes. That case is Swiddle Estate (Re), 2021 ONSC 1434.

The Formalities of Execution

Prior to the changes referenced above, s. 4 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) set out formal requirements for the proper execution of a will or codicil in Ontario. Subsection 4(1) reads:

4 (1) Subject to sections 5 and 6, a will is not valid unless,

(a)  at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b)  the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c)  two or more of the attesting witnesses subscribe the will in the presence of the testator.

Some provinces and territories have a validating provision in their SLRA equivalents which enable courts to grant probate for wills that have not strictly adhered to the formal requirements. Ontario’s SLRA does not contain any such provision.1 Thus, in Ontario, strict compliance with the formal requirements of execution takes on an added importance.

The difficulties one may face in complying with the s. 4 formal requirements in the midst of a pandemic are obvious. Accordingly, Ontario Regulation 129/20 was enacted on April 22, 2020, relaxing the formal requirements to better fit with health and safety protocols. The relevant portions of the Regulation provide as follows:

  1. In this Order,
    “audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.
  1. (1) A requirement under the Succession Law Reform Act that a testator or witnesses be present or in each other’s presence for the making or acknowledgment of a signature on a will or for the subscribing of a will may be satisfied by means of audio-visual communication technology provided that at least one person who is providing services as a witness is a licensee within the meaning of the Law Society Act at the time of the making, acknowledgment or subscribing.

(2) If a will is executed with the assistance of audio-visual communication technology as authorized by subsection (1), the signatures or subscriptions required by the Succession Law Reform Act may be made by signing or subscribing complete, identical copies of the will in counterpart, which shall together constitute the will.

(3) For the purposes of subsection (2), copies of a will are identical even if there are minor, non-substantive differences in format or layout between the copies. (emphasis added)2

The above changes are intended to provide necessary flexibility to the testamentary principles and processes in a Covid-19 world. That being said, Swiddle Estate (Re) indicates that such flexibility may be limited to the relaxation of the specific formal requirements. Strict compliance with those formalities, however relaxed, may still be insisted upon.

Swiddle Estate (Re)

In Swiddle, the testator attempted to execute a third codicil to her will on June 23, 2020 – after the enactment of Ontario Regulation 129/20. Because the witnesses could not attend in person, they spoke with the testator on the phone while she reviewed and signed the codicil. The codicil was mailed to the witnesses the next day for their signature. The testator’s daughters were present when the testator signed the codicil, and they signed it as well, apparently to indicate their consent with respect to its contents.

The court refused to grant probate to the codicil due to its noncompliance with the formal requirements outlined in the SLRA as well as in Ontario Regulation 129/20.3 The phone call was not found to meet the definition of “audio-visual communication technology” as per the regulation.4 In rejecting the codicil, the court emphasized that “Ontario is a jurisdiction that requires strict adherence to the formalities of execution of a will, as set out in the legislation.”5

Swiddle therefore reaffirms the importance of carefully executing testamentary documents according to the formal requirements outlined in the legislation. While Ontario Regulation 129/20 may make it easier to comply with those formal requirements in the midst of Covid-19, it is by no means an invitation to be lax about strict compliance.

When executing a testamentary document, we recommend seeking the advice of a qualified lawyer to help guide you through the process. This is especially true during these times, when the formal requirements of execution have shifted in response to our society’s rapidly changing needs.

Footnotes
  1.   However, it appears that one is on the way – see https://welpartners.com/blog/2021/02/welcome-amendments-to-ontarios-succession-law-reform-act/
     
  2.   Signatures in Wills and Powers Of Attorney, O Reg 129/20.
     
  3.   Swiddle Estate (Re), 2021 ONSC 1434 at para 5.
     
  4.   Ibid at para 5.
     
  5.   Ibid at para 7.
     
Gregory Sidlofsky and Adin Wagner

Gregory Sidlofsky and Adin Wagner

The authors of this blog are Gregory Sidlofsky and Adin Wagner. Gregory is a Certified Specialist in Litigation by The Law Society of Upper Canada and partner at Wagner Sidlofsky LLP and Adin is an associate.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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