Ensuring the Validity of Wills Sworn During the COVID-19 Pandemic

Ensuring the validity of wills sworn during the COVID-19 pandemic

It has been a long-standing requirement that in order to create a valid Will, the will-maker must sign the Will in front of two independent witnesses. Since March 2020, the execution of Wills and other estate planning documents has become more complicated as a result of the COVID-19 pandemic. Social distancing guidelines and concerns about the risks of meeting in person may make it difficult for a will-maker and the two required witnesses to all sign a Will in each other’s physical presence.

On May 19, 2020, temporary Ministerial Order No. M161 came into effect, allowing Wills to be validly executed where the will-maker and two required witnesses are simultaneously connected by videoconference technology. Subsequently, amendments to the Wills, Estates, and Succession Act (“WESA”) were made to allow for Wills to be signed and witnessed by videoconference technology, regardless of BC being in a declared state of emergency. The WESA amendments apply retroactively to Wills made on or after March 18, 2020.

These measures give will-makers more options to safely execute valid Wills. However, they do not validate any improperly witnessed Will that was made before the measures took effect. Any attempt to make a Will that does not comply with the appropriate legislation should be re-executed in accordance with the new legislation. During the signing, the will-maker and the witnesses could either be physically present together, or one or more of them could be connected by videoconference.

If a document is not properly signed before the individual’s death, it is possible for that document to be cured by an application under section 58 of WESA. Section 58 provides that the BC Supreme Court may order that a document that does not comply with WESA is fully effective as though it had been made in accordance with WESA. However, this process is costly (requiring a court application and supporting evidence) and uncertain.

If you have any questions about the validity of a document, a member of our Wills + Estates team would be happy to assist you.

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