The coronavirus pandemic has cause many people to think about their final wishes, including who they want to pass their assets to when they die. People who have not previously made Wills or Powers of Attorney (POAs) have suddenly wanted to do so.

Making a valid Will has always required complying with the law in one’s province. These laws can be quite strict with respect to the signing and witnessing of the Will. If a Will does not comply with the law in one’s province, it may not be valid and, as a result, there can be unforeseen tax consequences as well as some very disappointed family members. Litigation will often result.

The coronavirus pandemic has caused increased difficulty for people making their Wills. In particular, quarantine and social distancing measures enacted to stop the spread of Covid-19, make it difficult to properly witness the signing of a Will. Properly witnessing a Will is one of the main requirements for a valid Will.

Depending on the province in which you live, you have a few options for ensuring your pandemic-era Will is valid.

Making a Will in Different Canadian Provinces During Covid-19 Pandemic

 

Making a Valid Will in Alberta During the Pandemic

MAKING A WILL IN AB

Option 1: Strict Compliance with the Law

The Wills and Succession Act in Alberta provides that a Will is valid if it is in writing (as opposed to being an oral or video recording) and if it is signed by the Will-maker (or if the Will-maker directs that it be signed) in the presence of two witnesses who are together at the same time and who also sign the Will.

Due to either quarantine or social distancing measures, it may not be possible for a Will-maker to have two witnesses present. So far, the Alberta government has not enacted any emergency measures that would permit Will-makers or witnesses to virtually attend the Will-signing. In addition, currently, no province or territory other than Quebec permits electronic signatures on Wills – all signatures must be in ink.

Option 2: Substantial Compliance with the Law

In Alberta, there was a “substantial compliance” law in effect even before the pandemic hit. This law has helped ensure that Wills which substantially comply with the law are still considered valid, notwithstanding any lack of compliance with the formal requirements for signing and witnessing. There must be clear evidence, though, that the Will reflects the Will-maker’s intentions.

It is very risky to make a Will which doesn’t strictly comply with the law. There is no guarantee a court will later agree there was substantial compliance or that the document reflects the Will-maker’s intentions. The question of whether a Will substantially complies or reflects the Will-maker’s intentions must be brought to court and the court must be persuaded by evidence. This is an expensive and upsetting process for the Will-maker’s loved ones. It is best to avoid taking this risk.

Option 3: Holograph Will

Another option in Alberta is to make a holograph Will, meaning a Will that is entirely in the Will-maker’s own handwriting and signed by the Will-maker. This way, no witnesses are required. Holograph, or holographic, Wills were permitted even before the coronavirus pandemic hit. Many people are opting to make holograph Wills during the pandemic, even if just as a temporary measure until social distancing measures loosen.

Making a Valid Will in British Columbia During the Pandemic

MAKING A WILL IN BC

Option 1: Strict Compliance with the Law

Under the Wills, Estates and Succession Act in BC, a Will is valid if it is in writing (as opposed to being an oral or video recording), and signed by the Will-maker in the presences of two witnesses, who then also sign the Will.

Option 2: Substantial Compliance with the Law

Like in Alberta, there is a law in BC which may help protect Will-makers whose Wills are not strictly compliant with the law but which are substantially compliant. This “substantial compliance” law existed even before the pandemic, and may assist during the pandemic. A Will made in BC which does not comply with provincial laws regarding signing and witnessing, may nonetheless be valid, if the court is persuaded the Will reflects the Will-maker’s intentions.

The difficulty with relying on “substantial compliance” is that the matter must be brought to court and the court must be persuaded by evidence. This is an expensive and upsetting process for the Will-maker’s loved ones and there are no guarantees a court will be persuaded. If there is any way to avoid this, it is certainly best not to make an invalid Will hoping it will later be deemed by a court to substantially comply.

Unlike in most provinces, BC does not recognize holograph Wills. This means, it is not OK to make a Will solely in one’s own handwriting, and date and sign it without witnesses. While this is permitted in many provinces, it is not recognized in BC. It would be risky (and expensive) to assume a court will later approve a holograph Will as being substantial compliant.

The BC government has not yet enacted emergency measures to enable the virtual witnessing of Wills, and like the rest of Canada, BC does not permit the signing of Wills by electronic signature – all signatures must be in ink.

Making a Valid Will in Manitoba During the Pandemic

MAKING A WILL IN MB

Option 1: Strict Compliance with the Law

Under the Wills Act in Manitoba, a Will is valid if it is in writing (as opposed to being an oral or video recording), and signed by the Will-maker in the presences of two witnesses, who then also sign the Will.

So far, the Manitoba government has not enacted any emergency measures that would permit Will-makers or witnesses to virtually attend the Will-signing. In addition, currently, no province or territory other than Quebec permits electronic signatures on Wills – all signatures must be in ink.

Option 2: Substantial Compliance with the Law

Like in Alberta and BC, the Wills Act in Manitoba provides that the court can dispense with strict, formal requirements of signing and witnessing, and can accept a document as a Will, if the court is persuaded that the document reflects the testamentary intentions of the Will-maker. However, persuading the court is an expensive process, requiring evidence, and there is no guarantee the court will be persuaded. It is better not to leave this to chance or to later interpretation by a court.

Option 3: Holograph Will

The Wills Act in Manitoba permits people to make Wills entirely in their own handwriting and sign them without any witnesses present. These are called holograph, or holographic, Wills. Holograph Wills were permitted even before the coronavirus pandemic hit. Many people are opting to make holograph Wills during the pandemic, even if just as a temporary measure until social distancing measures loosen.

Making a Valid Will in New Brunswick During the Pandemic

MAKING A WILL IN NB

Option 1: Strict Compliance with the Law

Under the Wills Act in New Brunswick, a Will is valid if it is in writing (as opposed to being an oral or video recording), and signed by the Will-maker in the presences of two witnesses, who then also sign the Will.

So far, the New Brunswick government has not enacted any emergency measures that would permit Will-makers or witnesses to virtually attend the Will-signing. In addition, currently, no province or territory other than Quebec permits electronic signatures on Wills – all signatures must be in ink.

Option 2: Substantial Compliance with the Law

Like in Alberta, BC, and Manitoba, the Wills Act in New Brunswick provides that the court can dispense with strict, formal requirements of signing and witnessing, and can accept a document as a Will, if the court is satisfied that the document reflects the testamentary intentions of the Will-maker. That said however, satisfying the court is an expensive process, requiring evidence, and there is no guarantee the court will be satisfied. It is better not to leave this to chance or to later interpretation by a court.

Option 3: Holograph Wills

The Wills Act in New Brunswick permits people to make Wills entirely in their own handwriting and sign them without any witnesses present. These are called holograph, or holographic, Wills. Holograph Wills were permitted even before the coronavirus pandemic hit. Many people are opting to make holograph Wills during the pandemic, even if just as a temporary measure until social distancing measures loosen.

Making a Valid Will in Newfoundland & Labrador During the Pandemic

MAKING A WILL IN NL

Option 1: Strict Compliance with the Law

Under the Wills Act in Newfoundland, a Will is valid if it is in writing (as opposed to being an oral or video recording) and if it is signed by the Will-maker (or if the Will-maker directs that it be signed) in the presence of two witnesses who are together at the same time and who also sign the Will.

In Newfoundland and Labrador, like in Ontario, there is no “substantial compliance” law. If a Will in Newfoundland and Labrador does not meet with the strict formalities of the law regarding the signing and witnessing of it, that Will is not valid. The person who died will be deemed to have died without a Will and their estate will be divided according to provincial laws for persons dying without a Will. This is often not how the Will-maker would have wanted their assets divided.

So far, the Newfoundland government has not enacted any emergency measures that would permit Will-makers or witnesses to virtually attend the Will-signing. In addition, currently, no province or territory other than Quebec permits electronic signatures on Wills – all signatures must be in ink.

Option 2: Holograph Wills

The Wills Act in Newfoundland permits people to make Wills entirely in their own handwriting and sign them without any witnesses present. These are called holograph, or holographic, Wills. Holograph Wills were permitted even before the coronavirus pandemic hit. Many people are opting to make holograph Wills during the pandemic, even if just as a temporary measure until social distancing measures loosen.

Making a Valid Will in the Northwest Territories During the Pandemic

MAKING A WILL IN NT

Option 1: Strict Compliance with the Law

Under the Wills Act in the Northwest Territories, a Will is valid if it is in writing (as opposed to being an oral or video recording) and if it is signed by the Will-maker (or if the Will-maker directs that it be signed) in the presence of two witnesses who are together at the same time and who also sign the Will.

In the Northwest Territories, like in Newfoundland and Labrador, and like in Ontario, there is no substantial compliance law. If a Will in the Northwest Territories does not meet with the strict formalities of the law regarding the signing and witnessing of it, that Will is not valid. The person who died will be deemed to have died without a Will and their estate will be divided according to the territory’s laws for persons dying without a Will. This is often not how the Will-maker would have wanted their assets divided.

So far, the government of the Northwest Territories has not enacted any emergency measures that would permit Will-makers or witnesses to virtually attend the Will-signing. In addition, currently, no province or territory other than Quebec permits electronic signatures on Wills – all signatures must be in ink.

Option 2: Holograph Wills

The Wills Act in the Northwest Territories permits people to make Wills entirely in their own handwriting and sign them without any witnesses present. These are called holograph, or holographic, Wills. Holograph Wills were permitted even before the coronavirus pandemic hit. Many people are opting to make holograph Wills during the pandemic, even if just as a temporary measure until social distancing measures loosen.

Making a Valid Will in Nova Scotia During the Pandemic

MAKING A WILL IN NS

Option 1: Strict Compliance with the Law

Under the Wills Act in Nova Scotia, a Will is valid if it is in writing (as opposed to being an oral or video recording), and signed by the Will-maker in the presences of two witnesses, who then also sign the Will.

So far, the Nova Scotia government has not enacted any emergency measures that would permit Will-makers or witnesses to virtually attend the Will-signing. In addition, currently, no province or territory other than Quebec permits electronic signatures on Wills – all signatures must be in ink.

Option 2: Substantial Compliance with the Law

Like in Alberta, BC, Manitoba, and New Brunswick, the Wills Act in Nova Scotia provides that the court can dispense with strict, formal requirements of signing and witnessing of Wills, and can accept a document as a Will, if the court is satisfied that the document reflects the testamentary intentions of the Will-maker. That said however, satisfying the court is an expensive process, requiring evidence, and there is no guarantee the court will be satisfied. It is better not to leave this to chance or to later interpretation by a court.

Option 3: Holograph Wills

The Wills Act in Nova Scotia permits people to make Wills entirely in their own handwriting and sign them without any witnesses present. These are called holograph, or holographic, Wills. Holograph Wills were permitted even before the coronavirus pandemic hit. Many people are opting to make holograph Wills during the pandemic, even if just as a temporary measure until social distancing measures loosen.

Making a Valid Will in Nunavut During the Pandemic

MAKING A WILL IN NU

Option 1: Strict Compliance with the Law

Under the Wills Act in Nunavut, a Will is valid if it is in writing (as opposed to being an oral or video recording) and if it is signed by the Will-maker (or if the Will-maker directs that it be signed) in the presence of two witnesses who are together at the same time and who also sign the Will.

So far, the Nunavut government has not enacted any emergency measures that would permit Will-makers or witnesses to virtually attend the Will-signing. In addition, currently, no province or territory other than Quebec permits electronic signatures on Wills – all signatures must be in ink.

Option 2: Substantial Compliance with the Law

Under the Wills Act in Nunavut, the court can dispense with strict, formal requirements of signing and witnessing a Will, and can accept a document as a Will, if the court is satisfied that the document reflects the testamentary intentions of the Will-maker. That said however, satisfying the court is an expensive process, requiring evidence, and there is no guarantee the court will be satisfied. It is better not to leave this to chance or to later interpretation by a court.

Option 3: Holograph Wills

The Wills Act in the Nunavut permits people to make Wills entirely in their own handwriting and sign them without any witnesses present. These are called holograph, or holographic, Wills. Holograph Wills were permitted even before the coronavirus pandemic hit. Many people are opting to make holograph Wills during the pandemic, even if just as a temporary measure until social distancing measures loosen.

In Nunavut, holograph Wills that are not strictly compliant with the requirements for holograph Wills may still be valid. In this way, Nunavut has gone further than most provinces in trying to recognize Will-maker’s intentions. The Wills Act in Nunavut provides that a Will that is partly in the testator’s own writing and partly in printed, typewritten or other written form may be valid if (a) it appears that the testator intended to incorporate the printed, typewritten or other words; and (b) the will is signed by the testator.

Making a Valid Will in Ontario During the Pandemic

MAKING A WILL IN ON

Option 1: Strict Compliance with the Law

In Ontario, a Will is valid if it is in writing (as opposed to being an oral or video recording) and if it is signed by the Will-maker (or if the Will-maker directs that it be signed) in the presence of two witnesses who are together at the same time and who also sign the Will.

In Ontario, like in Newfoundland and Labrador, there is no “substantial compliance” law. If a Will in Ontario does not meet with the strict formalities of the law regarding the signing and witnessing of it, that Will is not valid. The person who died will be deemed to have died without a Will and their estate will be divided according to provincial laws for persons dying without a Will. This is often not how the Will-maker would have wanted their assets divided.

Option 2: Virtual Witnessing

Because of the coronavirus pandemic’s strict requirements for people to quarantine or at least, social distance, the Ontario government enacted emergency measures on April 7 and on April 22, 2020 to allow people to have their Wills witnessed virtually. So far, only Ontario, Quebec, and Saskatchewan have enacted emergency measures of this kind. Electronic signatures are not allowed in Ontario – documents must still be signed in ink. However, in Ontario, the Will-maker and witnesses can “attend” by audio-visual technologies such as Skype, Zoom, or Microsoft Teams, to witness each other signing the Will.

The requirements for Virtual Witnessing are that:

1) Participants must be able to see, hear, and communicate with each other in real time;
2) One witness must be a licensee regulated by the Law Society of Ontario;
3) The Will-maker and the witnesses may sign (in ink) a separate, complete, identical copy in counterpart (meaning each signs a copy in ink, then all signed copies put together make for one original, signed Will).

Option 3: Holographic Will

Ontario recognizes holograph Wills, meaning Wills written entirely in the Will-maker’s own handwriting and signed by the Will-maker. No witnesses are needed. Holograph Wills were permitted in Ontario even before the coronavirus pandemic hit. Many people are opting to make holograph Wills during the pandemic, even if just as a temporary measure until social distancing measures loosen.

Making a Valid Will in Prince Edward Island During the Pandemic

MAKING A WILL IN PEI

Option 1: Strict Compliance with the Law

Under the Probate Act in PEI, a Will is valid if it is in writing (as opposed to being an oral or video recording) and if it is signed by the Will-maker (or if the Will-maker directs that it be signed) in the presence of two witnesses who are together at the same time and who also sign the Will.

So far, the PEI government has not enacted any emergency measures that would permit Will-makers or witnesses to virtually attend the Will-signing. In addition, currently, no province or territory other than Quebec permits electronic signatures on Wills – all signatures must be in ink.

Option 2: Substantial Compliance with the Law

Like in Alberta, BC, Manitoba, New Brunswick, and Nova Scotia, the Probate Act in Prince Edward Island provides that the court can dispense with strict, formal requirements of signing and witnessing of Wills, and can accept a document as a Will, if the court is satisfied that the document reflects the testamentary intentions of the Will-maker. That said however, satisfying the court is an expensive process, requiring evidence, and there is no guarantee the court will be satisfied. It is better not to leave this to chance or to later interpretation by a court.

Option 3: Holograph Wills

The Probate Act in PEI does not permit a Will-maker to make a Will solely in their own handwriting and to sign it without witnesses present. These kinds of Wills, called holograph, or holographic, Wills, are not valid in PEI. The only exceptions are for persons on active military service, mariners, and seamen – these persons and only these persons may make a holograph Will in PEI.

Making a Valid Will in Quebec During the Pandemic

MAKING A WILL IN QC

Option 1: Strict Compliance with the Law

Under the Civil Code of Quebec, a Will is valid if it is a “notarial Will” (meaning it is executed before a Québec notary, in the presence of one witness); or if it is signed in the presence of two witnesses (who do not have to be lawyers or notaries), who sign the Will after the Will-maker.

Option 2: Emergency Measures

Because of the coronavirus pandemic’s strict requirements for people to quarantine or at least, social distance, the Quebec government enacted emergency measures on March 27, 2020 to allow people to have notarial Wills witnessed virtually and signed electronically. So far, only Ontario, Quebec, and Saskatchewan have enacted emergency measures respecting Wills. That said, however, Quebec’s measures go a step further by permitting electronic signatures on notarial Wills. In contrast, no other province or territory in Canada permits electronic signature on Wills.

As a result of the emergency measures, Quebec notaries are now able to complete notarial Wills using technology to witness and sign Wills as follows:

1) The notary, Will-maker, and witness must be able to hear and see each other and see the Will;
2) The Will-maker and witness, other than the notary, must affix their signature using technological means enabling them to be identified and confirming their consent;
3) The notary must then affix his or her digital official signature.

Electronic signatures are not permitted on non-notarial Wills.

Option 3: Holograph Wills

The Civil Code of Quebec permits holograph Wills, meaning Wills written entirely in the Will-maker’s own handwriting and signed by the Will-maker. No witnesses are needed. Holograph Wills were permitted in Quebec even before the coronavirus pandemic hit. Many people are opting to make holograph Wills during the pandemic, even if just as a temporary measure until social distancing measures loosen.

Making a Valid Will in Saskatchewan During the Pandemic

MAKING A WILL IN SK

Option 1: Strict Compliance with the Law

Under the Wills Act in Saskatchewan, a Will is valid if it is in writing (as opposed to being an oral or video recording) and if it is signed by the Will-maker (or if the Will-maker directs that it be signed) in the presence of two witnesses who are together at the same time and who also sign the Will.

Option 2: Substantial Compliance

Like in Alberta, BC, and Manitoba, the Wills Act in Saskatchewan provides that the court can dispense with strict, formal requirements of signing and witnessing of Wills, and can accept a document as a Will, if the court is satisfied that the document reflects the testamentary intentions of the Will-maker. That said however, satisfying the court is an expensive process, requiring evidence, and there is no guarantee the court will be satisfied. It is better not to leave this to chance or to later interpretation by a court.

Option 3: Virtual Witnessing

Because of the coronavirus pandemic’s strict requirements for people to quarantine or at least, social distance, the Saskatchewan government enacted emergency measures on April 16, 2020 to allow people to have their Wills witnessed virtually. So far, only Ontario, Quebec, and Saskatchewan have enacted emergency measures of this kind. Electronic signatures are not allowed in Saskatchewan – documents must still be signed in ink. However, in Saskatchewan, the Will-maker and witnesses can “attend” by audio-visual technologies such as Skype, Zoom, or Microsoft Teams, to witness each other signing the Will.

The requirements for virtual witnessing are that:

1) Participants must be able to see, hear, and communicate with each other in real time;
2) During an audio-visual meeting, the Will-maker signs the Will in ink, while the witnesses observe him or her do so. The Will-maker then delivers (such as by courier) the original Will document to the witnesses. In a follow-up audio-visual meeting, the Will-maker “acknowledges” the signature he or she previously applied to the Will, and the witnesses then sign. If the witnesses are not in the same room together, there can be separate follow-up audio-visual meetings to accomplish the virtual witnessing.

Option 4: Holograph Wills

The Wills Act in Saskatchewan permits people to make Wills entirely in their own handwriting and sign them without any witnesses present. These are called holograph, or holographic, Wills. Holograph Wills were permitted even before the coronavirus pandemic hit. Many people are opting to make holograph Wills during the pandemic, even if just as a temporary measure until social distancing measures loosen.

Making a Valid Will in Yukon During the Pandemic

MAKING A WILL IN YT

Option 1: Strict Compliance with the Law

Under the Wills Act in the Yukon, a Will is valid if it is in writing (as opposed to being an oral or video recording) and if it is signed by the Will-maker (or if the Will-maker directs that it be signed) in the presence of two witnesses who are together at the same time and who also sign the Will.

In the Yukon, like in Ontario and Newfoundland and Labrador, there is no “substantial compliance” law. If a Will in the Yukon does not meet with the strict formalities of the law regarding the signing and witnessing of it, that Will is not valid. The person who died will be deemed to have died without a Will and their estate will be divided according to the territory’s laws for persons dying without a Will. This is often not how the Will-maker would have wanted their assets divided.

So far, the Yukon government has not enacted any emergency measures that would permit Will-makers or witnesses to virtually attend the Will-signing. In addition, currently, no province or territory other than Quebec permits electronic signatures on Wills – all signatures must be in ink.

Option 2: Holograph Wills

The Wills Act in the Yukon permits people to make Wills entirely in their own handwriting and sign them without any witnesses present. These are called holograph, or holographic, Wills. Holograph Wills were permitted even before the coronavirus pandemic hit. Many people are opting to make holograph Wills during the pandemic, even if just as a temporary measure until social distancing measures loosen.