Testamentary Documents
On April 16, 2020, the Government of Saskatchewan enacted the following emergency regulation:
Please refer to our Emergency Practice Directive Number 3 and Form PD3 – Declaration of Lawyer Who Has Witnessed a Will via Electronic Means. For Powers of Attorney, refer to our Emergency Practice Directive and Declaration in Law Society of Saskatchewan Form PD1.
To guide and support the membership who avail themselves of the emergency measures in the regulations, the Law Society issued Practice Directives Number 1 and 3. There are unique requirements associated with each of these Directives; Number 1 applies to the execution of Powers of Attorney (among other documents) and Number 3 applies strictly to the execution of Wills. Both allow for virtual execution or remote witnessing by “electronic means”, which is defined as “an electronic method of communication that includes both audio and visual aspects, such that the lawyer and signator can both hear and see each other during the course of the meeting”. This could be accomplished by meeting using services like Zoom, GoogleDuo, GoToMeeting, Facetime or Skype.
The intention is to ensure that lawyers remain able to assist clients during public emergency periods (like the one currently in effect in Saskatchewan) to execute legally valid Wills or Power of Attorney while maintaining physical/social distancing and without placing lawyers, their staff, testators or witnesses at risk.
With this new process be cognizant of ways to Avoid Potential Claims and Complaints.
Other options to consider include:
- In the case of a “Death-Bed Will” or preparation of other necessary testamentary documents, up to the point of execution, use other means of taking instructions/providing advice (i.e. telephone, Facetime, Skype, etc.).
- Consider whether suggesting a holographic will is appropriate in the circumstances to ensure your own personal safety and the safety of others. You could assist your client over the phone (or other non-face-to-face means, if needed) to help them understand how to draft a holographic will.
- Consider if it is possible to arrange for two non-lawyer witnesses to be present. Although healthcare practitioners may be reticent to act as witness, there are others, such as patient advocates and Social workers on staff at the hospital that may be able to assist. Have these discussions early in the process, so that you are prepared when the time comes to execute the documents.
- If you have concerns regarding capacity issues or undue influence, you may need to attend personally to satisfy these concerns. However, you may do so at the time of attending to execute the Will or other testamentary document. If you can have the client wait until a later date, please consider that. Any interviews of medical staff, etc. may be conducted remotely.
- In the event that something less-than-ideal is required in order to ensure that a Will is executed, for example, if there can be no witnesses to a non-holographic Will, or only one witness is available, ensure that you are thoroughly documenting these occurrences and the circumstances surrounding them, in the event that evidence is required in a future application for “substantial compliance.”