On April 16, 2020, the Government of Saskatchewan enacted emergency regulations relating to the remote execution of wills via electronic means. On August 7, 2020, the Government of Saskatchewan repealed those emergency regulations and replaced them with permanent regulations as follows:
Please refer to our Practice Directive 3 and Form PD3 – Declaration of Lawyer Who Has Witnessed a Will via Electronic Means. These changes enable lawyers 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 Law Society of Saskatchewan has been working closely with the Government of Saskatchewan on these measures. As part of the new processes contemplated by the regulations, 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 a practice directive to the profession to guide practitioners who avail themselves of 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, the original Will document must travel between the testator, the lawyer, and potentially the second witness with applied signatures being acknowledged by the testator and witnesses during meetings 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. 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.
If you have questions regarding compliance or the application of this Directive, please contact firstname.lastname@example.org for assistance.