by LAWPRO

The Successions Law Reform Act and Substitute Decisions Act(the “Acts”) were amended to provide for remote execution and witnessing of wills and power of attorneys on or after April 7, 2020. Allowing remote witnessing of wills and powers of attorneys was originally permitted in response to COVID-19, the Ontario government subsequently changed the law to permanently provide for this option. Electronic signatures are not permitted.

How to lessen your risk of a malpractice claim

The most common causes of malpractice claims in this area of law are summarized in LAWPRO’s Wills and Estates Claims Fact Sheet. Like most areas of practice, misunderstandings and poor communication, which are often coupled with not fully understanding the details about the client’s situation, are the most common cause of claims. These problems can lead to power of attorneys and wills that do not reflect the grantor/testator’s instructions and intent, or that do not fully address the grantor/testator’s situation. Drafting errors (e.g., transcribing instruction notes), problems with precedents and even simple typos may also give rise to claims.

Most of the focus in this document is the virtual witnessing meeting. Given the limitations of virtual meetings, the work you do prior to the intake meeting becomes more important than ever before. Consider getting your client to complete a client questionnaire before the meeting and ask them to provide you with any other documentation that is material to their estate planning needs. Review the completed questionnaire and other documentation before the intake meeting to be in a better position to elicit the client’s testamentary intentions and effectively communicate the way in which the testamentary document will reflect those intentions.

As the virtual witnessing rule requires that a Law Society licensee be one of the witnesses for the virtual witnessing of a will or power of attorney it is much more likely that you can expect to be asked to witness a will or power of attorney that you did not prepare. On first blush you might think you have limited or no obligation to make sure the documents cannot be contested later. The reality is that if there are disappointed family members or beneficiaries who think there was something wrong with these documents, you can safely bet that any resulting claim will include your name. See The dangers of renting out your signature as a virtual witness on a will or POA.

Here are some steps you can take to lessen the risk of a claim when you are virtually witnessing wills or powers of attorney:

Make sure everyone is comfortable: While some people will be quite comfortable with technology and online videos, recognize that some clients may not be familiar with video technology and might be uncomfortable discussing highly personal information by virtual means. Take time to make sure everyone can see and hear the other participants and that all are comfortable proceeding.

ID and checklists: Although the Rules of Professional Conduct do not typically require verification of ID of a grantor or testator, doing so and retaining a copy of the ID is prudent in case any questions arise about who gave instructions. Use the PracticePRO Video Conferencing Checklist to help manage your client meeting and reduce risk. You may also wish to consider using the Law Society’s Virtual Commissioning Checklist.

Make sure the client understands the documents: This is a key responsibility and may take longer in a virtual setting. Virtual meeting tools often permit screen sharing which could be used to make sure that clients are following along with you or to highlight and review specific parts of a document. Be sure to highlight specific client requests or unusual circumstances, how they have been addressed and their implications.

Consider client capacity: Your ability to assess client capacity may be more difficult given you are communicating over a virtual connection. Ask open questions, and probe with follow up questions as may be necessary. Take notes reflecting your consideration of capacity, especially if there are any concerns.

Watch for undue influence: Your ability to identify circumstances where undue influence is occurring is likely more difficult over a virtual connection because you can’t see what is going on off-screen. Although there are exceptions (e.g. if a translator is present), the client should be alone in the room. Take notes reflecting your consideration of undue influence, especially if there are any concerns. It is important to ask clients why they are seeking a will and/or powers of attorney at this time and ask questions to make sure that the client is acting independently. For example, particularly where a client is instructing a will change that is a departure from prior wills, make specific inquiries into the relationship with each proposed beneficiary such as “when was the last time you communicated in person or otherwise with x beneficiary?” Be sure to document the responses in your file.

Take care with counterparts: To help verify that identical documents are being signed, consider referencing page numbers or the last word on each page as the testator and witnesses initial the pages. The Acts state that copies of a will or power of attorney will be considered to be identical even if there are “minor, non-substantive differences in format or layout between the copies”.
Documenting the virtual meeting: Taking detailed notes of what occurred, what was said, and the timing can be very helpful with defending a malpractice claim as memories will fade. For a more comprehensive account of the meeting, you might consider recording it. If you intend to record a client meeting, you have a duty to inform your client before recording them, and you should also inform others present in a meeting of your intention to record. For a more complete discussion of the benefits and risks of recording, and your professional obligations please see the Law Society’s information on recording virtual meetings.

Send reporting letter: Provide a reporting letter after virtual client meetings confirming everything that was discussed. Doing this in a timely manner will help ensure that you and your client are on the same page and serve as confirmation of your instructions. If you received the original signed version of each of the counterparts, review each to ensure that the will and/or powers of attorney has been properly executed.