Estate Planning during Quarantine or Self-Isolation due to COVID-19 or Corona Virus
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, we have Edmonton Wills and Estate lawyers to assist you during these times. 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.
1) 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”, a useful tool for health professionals.
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.
2) 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?
This will depend in part on whether you have witnesses available you can meet in a safe and appropriately distanced manner. All of the above documents require your witnesses to be physically present to witness each other’s signatures. However, as long as you and your witnesses can physically see all of the signatures being placed on the paper you can be separated by a space of two meters and/or could have a clear barrier such as a car window between yourself and witnesses.
If you can meet safely with TWO appropriate witnesses
If you have two adult witnesses available to execute documents as set out above, you will be able to work with a lawyer by phone and e-mail to create a traditional estate plan. You can then execute that estate plan with those witnesses and send a scanned (or physical) copy of the documents to your lawyer to review and ensure they are executed properly.
Typically witnesses to these documents would execute affidavits of execution at the time for signing to allow for future official use of these documents, but in present circumstances this can be left until either use of these documents is required, or this public health emergency has concluded.
If you can meet safely with ONE appropriate witness
You will be able to execute a Personal Directive and Enduring Power of Attorney with your witness as outlined above after working with a lawyer by phone and e-mail. You can then send a copy to your lawyer to ensure it was executed properly.
If you have access to only one appropriate witness, there are still options available to you to put a Will in place, which are explained below.
If you cannot meet safely with ANY appropriate witnesses
If you do not have access to any appropriate witnesses you will not be able to execute a valid Personal Directive or Enduring Power of Attorney, but there are some options to put a Will in place.
The first option is to execute a Holograph Will. Our estate planning lawyers can assist you in this by helping you determine your wishes for your estate and the appropriate issues that need to be accounted for in a Will via phone and e-mail. They can also help you draft this document either by working with you over the telephone or videocall as you physically write the Holograph Will, or alternatively can send you by e-mail a document with the words that you should copy to execute your own Holograph Will. You can then send a copy of the executed Will to your lawyer to review and ensure that what you have written correct reflects your wishes. As a Holograph Will must be entirely in your own writing, this option works better for fairly simple Wills.
The second option is to work with your lawyer to create a more traditional Formal Will, and to execute the same without witnesses. This does not result initially in a valid Will in Alberta, but in a Will that should be capable of validation by court application under section 37 of the Wills and Succession Act, SA 2010, c W-12.2.
Under this second option, at the end of this public health emergency, you should make an appointment to meet with your lawyer when it is safe to do so and execute another copy of the Will with two witnesses, to meet the required legal formalities. Otherwise, there will be some additional costs to your estate to make an application to validate your Will after you’ve passed away. There are also no guarantees that a court will accept and validate that Will, but your lawyer should work with you to create the best evidence possible to show the court that the Will should be validated should it need to be used.
3) Will these witnessing requirements be changed to allow lawyers or other people serve as witnesses via videocall or other means if this public health emergency continues for an extended period of time?
The short answer is maybe. There has been some guidance issued for the commissioning of certain types of affidavits by electronic means over videocall, however as of April 2, 2020 there has been no direct indication that the witnessing requirements for estate planning documents in Alberta will be changed.
4) 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 is easiest 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.
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 Benjamin M. Seigel. Ben is a lawyer at McCuaig Desrochers LLP
©2019 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.