On April 16, 2020, the Government of Saskatchewan enacted the following emergency regulation:
These changes enable lawyers, during public emergency periods (like the one currently in effect in Saskatchewan), to act as one of the two witnesses to a Will via electronic means, i.e. a video conference on platforms like Skype or Facetime. The intention is to ensure that lawyers remain able to assist clients to execute legally valid Wills while maintaining physical/social distancing and without placing lawyers, their staff, testators or witnesses at risk.
The Law Society of Saskatchewan has been working closely with the Government of Saskatchewan on these emergency measures. As part of the new processes contemplated by the emergency measures, the Law Society of Saskatchewan plays an important role in helping lawyers maintain the integrity of executed Wills and to protect their clients. To that end, the Law Society of Saskatchewan has issued to the profession to guide practitioners who avail themselves of the emergency measures provided in the new regulations.
Wills are unique as compared to other documents capable of being executed remotely, in that all signatures must be “wet ink” signatures. As such, there are important differences in the process for remote witnessing. The process hinges upon the pre-existing ability in The Wills Act, 1996 for testators and witnesses to “acknowledge” their signatures previously applied to a Will. The amendments allow for that acknowledgement of signatures previously applied to the original Will to occur via electronic means. As such, while the original Will document must travel between the testator, the lawyer, and potentially the second witness, these people may maintain physical/social distancing while witnessing acknowledged signatures via electronic means.
The practice directive sets out the expectations for how lawyers are to safeguard testators, those who will ultimately rely on the Wills, and themselves, while witnessing Wills remotely. As with the previously released Emergency Practice Directive Number 1 related to the remote execution of other documents, lawyers are required to manage heightened risks associated with fraud, identity theft, undue influence, duress and potential lack of capacity. As part of the practice directive, lawyers are required to complete a Form PD3 – Declaration of Lawyer Who Has Witnessed a Will via Electronic Means every time they witness a Will via electronic means. Lawyers are required to append to Form PD3, a photograph or screen capture of the testator with the testator’s photo identification obtained during the session wherein the testator’s signature is acknowledged and the lawyer signs as witness. Lawyers are required to maintain Form PD3 on their files to supplement their routine file notes.