UPDATED: Estate Planning During the COVID-19 Pandemic

Much of the work done with lawyers these days can be accomplished by phone or e-mail. Estate planning can be a bit more challenging during quarantine or self-isolation due to the requirement for witnesses on estate planning documents. However, the Alberta government has recently issued a Ministerial Order that will allow lawyers to fulfill witnessing requirements for estate planning documents without meeting with you in person. We have Edmonton Wills and Estate lawyers to assist you in putting in place an estate plan. Below we will discuss what options are available, and how you can work with one of our estate planning lawyers during quarantine or self-isolation to complete an estate plan.

What documents make up an estate plan, and what are the witnessing requirements for each?

Personal Directive – This document names someone (an “agent”) to make health care and living decisions on your behalf should you lose capacity to do so. This document requires you and a witness to sign in each other’s presence. That witness cannot be someone named as your agent, or the spouse or interdependent partner of either yourself or someone named as your agent. This document should also go in your “green sleeve”.

Enduring Power of Attorney – This document names someone (an “attorney”) to control your assets and make financial decisions on your behalf should you lose capacity to do so. This document requires you and a witness to sign in each other’s presence. That witness cannot be someone named as your attorney, or the spouse or interdependent partner of either yourself or someone named as your attorney.

Will – This document governs what happens to your estate when you die and names someone (an “executor” or “personal representative”) to bring in all your assets, pay your debts and distribute your property to your beneficiaries.

There are two types of wills available to most people that are valid under the law in Alberta:

  • Formal Will – This document requires you and two witnesses to all sign in each other’s presence. If a witness to the will is a beneficiary under the will, or the spouse or interdependent partner of a beneficiary under your will, the gift to that beneficiary is considered void unless the court orders otherwise.
  • Holograph Will – This document requires you to write out the will entirely in your own handwriting and to sign it. It does not require you to have any witnesses.

How can one of our estate planning lawyers help you complete an estate plan during quarantine or self-isolation due to the COVID-19 corona virus?

The recent Ministerial Order (M.O. 39/2020) issued on May 15, 2020 by the Alberta Government deems that the witnessing requirements for Personal Directives, Enduring Powers of Attorney and Wills may be completed via videoconference technology if a lawyer is providing legal advice in respect to the making, signing and witnessing of those documents. The order specifies that the witness and party signing the document must be able to hear and see each other in real time, so all parties must have access to videoconferencing technology for this method to work.

This relaxing of the need for witnesses to meet in person appears to be a temporary measure during the COVID-19 pandemic, and additionally can only be utilized if a lawyer is involved in this process.

Can you help me with an estate plan if I live outside of the Edmonton area?

We are happy to work with anyone in the province of Alberta to assist with your estate plan. In normal circumstances it may be easier to work with a lawyer near you due to the witnessing requirements for your estate plan, however if you are planning to execute an estate plan remotely we would be happy to assist you. As laws regarding estate planning vary province by province we are not able to assist those who live outside Alberta.

Should you have questions regarding the above or if you are interested in speaking with one of our estate planning lawyers about the possibility of putting an estate plan in place during the COVID-19 public health emergency, please feel free to reach out to any of our estate planning lawyers by telephone or e-mail. A full listing can be found here: https://www.mccuaig.com/practice-areas/wills-estate-lawyers-edmonton/

This article was written by Ben Seigel. Ben Seigel is a lawyer at McCuaig Desrochers LLP.

©2020 McCuaig Desrochers LLP. All rights reserved. The content of this newsletter is intended to provide general information on McCuaig Desrochers LLP, our lawyers, and recent developments in the law and is not to be relied on as legal advice or opinion.