Ministerial orders allow electronic witnessing of wills and personal-planning documents in British Columbia


2 June 2020

By Kevin Zakreski

In a pair of ministerial orders dated 19 May 2020, the government of British Columbia has enabled electronic witnessing of wills, enduring powers of attorney, and representation agreements. The ministerial orders are temporary; they are set to expire when the COVID-19 pandemic state of emergency ends. The government explained the rationale for the orders in an information bulletin:

The emergency orders address concerns raised by the legal community, including the regulatory bodies and representative associations for lawyers and notaries public, as well as by members of the public, regarding the requirement that such legal documents be executed and witnessed in person.

The new orders benefit both legal professionals and their clients, particularly seniors and immuno-compromised people who may be hesitant to travel into more populated areas during the COVID-19 pandemic, as well as British Columbians who live in rural and remote areas and are trying to limit travel outside of their communities.

Under the orders, which are effective as of May 19, 2020, careful safeguards will be established to reduce fraud, including ensuring legal professionals (lawyers and notaries public) are involved in remote execution; prescribing the circumstances in which documents can be executed remotely; and providing strict parameters and requirements around remote execution.

The first of these orders, entitled the Electronic Witnessing of Wills (COVID-19) Order (PDF), is a short, three-section document. It opens with a definition section, which includes two key definitions:

“communicate” means communicate using audiovisual communication technology, including assistive technology for individuals who are hearing impaired or visually impaired, that enables individuals to communicate with each other by hearing and seeing each other;

“electronic presence” or “electronically present” means the circumstances in which 2 or more individuals in different locations communicate simultaneously to an extent that is similar to communication that what [sic] would occur if all the individuals were physically present in the same location.

The order goes on to say that “A will may be made by signing complete and identical copies of the will in counterpart.” There’s some flexibility in the requirement for “identical copies”: as the order states, “Copies of a will are identical even if there are non-substantive differences in the format between the copies.”

The operative provision of the order provides “When making a will, the will may be signed and witnessed while the will-maker and the witnesses to the will are in each other’s electronic presence.” A will “made in accordance with this order” is deemed to meet “the requirements in section 37 (1) (b) and (c) of the Wills, Estates and Succession Act in relation to a will-maker and the witnesses signing and witnessing the will in the presence of each other.”

The order imposes two additional requirements on electronic witnessing:

  • “At least one of the witnesses to a will must be a lawyer or a notary public,” and
  • “A will made in accordance with this order must include a statement that it was signed and witnessed in accordance with this order.”

The second order, called the Electronic Witnessing of Enduring Powers of Attorney and Representation Agreements (COVID-19) Order (PDF), contains provisions that parallel those just described for the first order. But its operative provisions are tailored to the requirements of the Power of Attorney Act and the Representation Agreement Act.

“If an enduring power of attorney is signed and witnessed in accordance with this section,” the order provides

  • “the requirements in section 16 (1) and (2) of the Power of Attorney Act in relation to an adult making an enduring power of attorney, the witnesses and, if applicable, the person signing the enduring power of attorney on behalf of the adult making the enduring power of attorney, signing and witnessing the enduring power of attorney in the presence of each other are satisfied,” and
  • “the requirements in section 17 (1) of the Power of Attorney Act in relation to an attorney and the witnesses signing and witnessing the enduring power of attorney in the presence of each other are satisfied.”

“If a representation agreement is signed and witnessed in accordance with this section,” the order provides

  • “the requirements in section 13 (3.01) of the Representation Agreement Act in relation to the signature of an adult making a representation agreement being witnessed are satisfied,” and
  • “the requirements in section 13 (4) (b) of the Representation Agreement Act in relation to the adult making a representation agreement and the person signing the representation agreement on behalf of the adult being in each other’s presence when signing are satisfied.”

For representation agreements, the order also provides “for certainty” that “a person may certify that the person was present if the signing of the representation agreement was done in accordance with this section” for the purposes of the following two sections in the Schedule to the Representation Agreement Regulation”:

  • “section 1 (b) of Part 2 in Form 3 (Certificate of Person Signing for the Adult)”;
  • “section 4 (b) of Part 1 in Form 4 (Certificate of Witnesses).”

 


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