Important note: At NSRLP we are working to keep this page as up-to-date as possible. However, we recommend you also check the website for the court that is handling your case (see below).
Last updated March 16, 2021
If you want to update your will, create a new will or make a Power of Attorney (POA) delegating decision-making authority to someone else in the event that you are incapacitated, the witnesses to these documents normally need to be in the same room at the same time to ensure validity.
So how do you do that while there is social distancing in effect?
Some provinces and territories are coming out with special new rules to enable virtual witnessing. Others are not yet announcing new rules, but are putting out some practical tips for how to satisfy legal witnessing requirements without being physically present with someone.
The list below is the story so far. Like all our other NSRLP COVID resources, we shall be updating this regularly.
Good luck everyone as we all work to adapt!
Julie & the NSRLP Team
ALBERTA
In Alberta, a holograph will that is entirely in the testator’s own writing and signed by the testator without being witnessed is valid when it is prepared during an emergency, and clearly states the testator’s intentions. It is important to note that a holograph will can be contested and need not be accepted by probate courts.
For more information, please see:
https://www.cplea.ca/wp-content/uploads/MakingAWill.pdf
On June 26th, the Wills and Succession Act in Alberta was amended. This amendment allows for Wills to be signed and witnessed through an electronic mode of communication that enables the parties to see, hear and communicate in real time.
With the issuing of the Remote Signing and Witnessing (Effective Period) Regulation (Ministerial Order 47/2020), dated July 15, a will in Alberta can be signed and witnessed remotely until August 15, 2022.
For more information please see:
For more information, please see:
https://www.lawsociety.ab.ca/engaging-with-stakeholders-to-provide-covid-19-updates/
https://www.qp.alberta.ca/documents/Acts/W12P2.pdf
In addition, be careful to avoid an electronic signature – rather than one in your own hand – on the following: wills, codicils, personal directives and enduring powers of attorney under the Powers of Attorney Act(Electronic Transactions Act).
For more information please see:
https://www.qp.alberta.ca/documents/Acts/E05P5.pdf
An Enduring Power of Attorney must be signed and dated by both the grantor and a witness in each other’s presence according to Alberta’s Powers of Attorney Act.
For information on making an Enduring Power of Attorney please see:
https://www.cplea.ca/wp-content/uploads/MakingAnEnduringPowerOfAttorney.pdf
BRITISH COLUMBIA
Changes have been made to the Wills, Estates and Succession Act that make the COVID-19 response to enable courts to accept electronic wills and to permit the remote witnessing of wills permanent. The amendments to the Act can be found below:
For more information on the remote execution of powers of attorney and representation agreements please see:
http://www.bclaws.ca/civix/document/id/mo/mo/2020_m162
General guidelines and tips for preparing or updating a will in BC during the COVID-19 pandemic have been created by The People’s Law School. See link below with the various options:
The Land Title and Survey Authority of British Columbia has provided information on the signing and witnessing requirement for an Enduring Power of Attorney in the presence of two layperson witnesses in accordance with provisions under British Columbia’s Power of Attorney Actand Land Title Act.
For more information please see:
https://ltsa.ca/news/questions-and-answers-remote-witnessing-during-covid-19
Please note that British Columbia’s Electronic Transactions Actdoes not recognize wills, trusts created by wills and powers of attorney that concern the financial affairs or personal care of an individual as valid if they are signed electronically.Therefore, wills and powers of attorney must be signed by hand.
For more information please see:
MANITOBA
The requirements for in-person commissioning and witnessing of wills and powers of attorney has been suspended temporarily under the “Order re Temporary Suspension of In-Person Commissioning or Witnessing Provisions”. It sets out the steps required when taking an oath or witnessing the signing of a will or power of attorney through videoconferencing or through a glass or plexiglass partition. This Order came into effect on May 13, 2020 and will continue until March/April 2021.
For more information please see:
https://news.gov.mb.ca/news/index.html?item=49198&posted=2020-09-10
For information on signing a will please see:
https://lawsociety.mb.ca/wp-content/uploads/2020/05/Signing-a-Will.pdf
For information on making a power of attorney please see:
https://lawsociety.mb.ca/wp-content/uploads/2020/05/Giving-a-Power-of-Attorney.pdf
NEW BRUNSWICK
In New Brunswick, a holograph will may be created by a testator without witnesses during emergencies by preparing it entirely in the testator’s handwriting and with the testator’s signature. For the holograph will to be valid, the testator must be aware of the various other legal requirements tied to the creation of a will.
For more information, please see:
http://www.legal-info-legale.nb.ca/en/making_a_will
For information on making a power of attorney please see:
http://www.legal-info-legale.nb.ca/en/powers_of_attorney
NEWFOUNDLAND AND LABRADOR
The Law Society of Newfoundland and Labrador approved a new rule (Rule 18 – Witnessing, Commissioning and Notarizing Documents via Audio-Visual Communication and its corresponding Temporary Alternate Witnessing of Documents Act) which allows the signing and witnessing of wills via audio-visual communication.
For more information, please see:
https://lsnl.ca/lawyers-students/lawyer-regulation/law-society-rules/part-xviii/#Purpose
https://lsnl.ca/information-regarding-covid-19/
The following link created by the Law Society of Newfoundland and Labrador outlines some general guidelines with how to deal with witnessing requirements of executing a will:
https://lsnl.ca/requirements-under-the-wills-act/
For information on making a will or enduring power of attorney please see:
https://publiclegalinfo.com/wp-content/uploads/2018/02/PLIAN-Legal-Planning-Guide.pdf
On May 6, 2020, the Temporary Alternate Witnessing of Documents Act came into force in Newfoundland. The act amends the Wills Act by allowing for the signing and witnessing of wills through the use of audio-visual technology. This Act will remain in force until “the date the public emergency ends”.
For more information please see:
https://www.assembly.nl.ca/Legislation/sr/statutes/t04-001.htm#6_
NORTHWEST TERRITORIES
A holograph will that is entirely handwritten and signed by the testator is valid in the Northwest Territories even if the requirements for witnesses set out in the Wills Act are not met. Please note, however, that holographic wills are not recognized in many jurisdictions and should be avoided when possible. Also note that a will form is not considered a holographic if it is partly in print and only partly in the handwriting of the will maker.
For more information, please see:
For information on the types of power of attorney in Northwest Territories please see:
https://www.justice.gov.nt.ca/en/power-of-attorney/
NOVA SCOTIA
The Nova Scotia Barristers’ Society discusses circumstances under which the execution of a will or power of attorney can be done remotely through videoconferencing in its “COVID-19 Legal Profession FAQs”.
For more information please see the following FAQ “My client requires a Will, Power of Attorney and/or Personal Directive. Can I witness the execution of these documents remotely?”:
https://nsbs.org/covid-19-questions/covid-19-legalfaqs/#limit
ONTARIO
During the COVID-19 emergency, a testator or witnesses making a signature on a will or power of attorney may do so by means of audio-visual communication technology provided that the communication between the testator and the witnesses is in real time and at least one person who is providing services as a witness is a licensee within the meaning of the Law Society Act .
https://www.ontario.ca/laws/regulation/200129?search=emergency%2Bmanagement
Please note that Ontario’s Electronic Commerce Actdoes not recognize wills, codicils and powers of attorney for property and personal care that are signed electronically rather than by hand as valid.
For more information please see:
https://www.ontario.ca/laws/statute/00e17#BK38
Community Legal Education Ontario (CLEO) has developed an interactive guide that helps you to create a Power of Attorney online and in real time. It can also assist you to cancel a Power of Attorney. See the link below:
https://stepstojustice.ca/guidedpathways/POA
QUEBEC
Due to the current COVID-19 health emergency, wills and powers of attorney may be witnessed via a technological medium. A lawyer or notary must be virtually present and witnesses must provide two pieces of identification, with one piece containing a photo.
SASKATCHEWAN
Lawyers, during public emergency periods (like the one currently in effect in Saskatchewan), may act as one of the two witnesses to a Will via electronic means, i.e. a video conference on platforms like Skype or Facetime.
https://www.lawsociety.sk.ca/regulation/act-code-and-rules/practice-directives/practice-directive-3/
https://www.lawsociety.sk.ca/media/395881/practice-directive-3-final.pdf
The Powers of Attorney (Public Emergencies) Regulations allows lawyers to witness powers of attorney remotely using electronic means during a public emergency period.
For more information, please see:
https://www.canlii.org/en/sk/laws/regu/rrs-c-p-20.3-reg-2/latest/rrs-c-p-20.3-reg-2.html
On April 16, 2020 The Wills (Public Emergencies) Regulations came into force in Saskatchewan. These regulations permit the signing of a will to be witnessed remotely as long as one of the two witnesses is a lawyer.
These regulations allow an individual to sign their will, send the signed copy back to their lawyer, and acknowledge their signature remotely via video before their lawyer and a second witness. The Regulations do not allow for the creation of an electronic will or the use of electronic signatures. Wills must be in writing and signed by the person making the will and both witnesses in ink.
For more information please see:
https://www.saskatchewan.ca/government/news-and-media/2020/april/20/witnessing-of-wills
YUKON
A holograph will that is entirely handwritten and signed by the testator will usually be recognized by a Yukon court as valid even if it is not witnessed. Please note that will forms that are partially printed and partially handwritten are not recognized as holograph wills. Additionally, a will that is written by another person and just signed by the testator is also not recognized as a holograph will. It is also important to note that holograph wills are not recognized in some parts of Canada, the United States and other countries.
For more information, please see:
https://yplea.com/wp-content/uploads/2013/03/Final-English-Sept13-wills-booklet.pdf
For information on making an Enduring Power of Attorney please see:
While the state of emergency continues to exist in Yukon, virtual witnessing of a will is possible as long as everyone involved with the will is located in Yukon and are present at the same time that the will is being signed.
To view the Ministerial Order that specifies the requirements for will creation during the COVID-19 state of emergency please see:
http://www.gov.yk.ca/legislation/regs/mo2020_039.pdf
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Originally compiled by Hayley Waring, Project Coordinator, NSRLP West, and Arathi Ajit, Research Assistant, NSRLP. Updated by Lauren Stokes, Research Assistant, NSRLP.
‘the “normal” rule is that these documents must be witnessed by two people, one of whom should be a lawyer.’
Dr, MacPharlane, this is not the normal rule, this was the first change Ontario put in for virtual witnessing.
The normal rule is:
‘A properly executed Will in most jurisdictions has the testator declare to the witnesses that they are about to see him/her sign their Last Will and Testament at the end of the document, and he/she the testator then signs the document. The witnesses then sign a short declaration in the Will that they were present and witnessed the testator’s signature. ‘
There is no requirement that one should be a lawyer.
With social distancing rules, progress is being made each day with virtual witnessing. If jurisdictions can take away the requirement of a legal licensee we will progress past this major mistake Ontario has made in Access to Justice, Self Representation.
All jurisdictions should allow witnesses of any persuasion as before, people are capable, many lawyers are not so technology prone. All that is needed is a declaration or witnessing form held by each available witness, they are shown the signature by the testator as he/she signs, then they sign the declaration and provide it to the testator.
Hi Paul, thank you for your comment, we’ve updated the page to be more accurate.