Preparing or updating your will during coronavirus

“With the pandemic scare still vivid, writing a will has moved from my should-do list to a top priority. I'm a childcare worker. When you’re caring for little ones — you hold them, you feed them — it’s impossible to practise physical distancing. I’m proud to do my part. But going to work has been a risk to my health and my family’s, so I’m not taking any more chances when it comes to my final wishes.”

– Priya, North Vancouver, BC

We all want to make sure our loved ones are taken care of when we’re gone. In this time of uncertainty, thinking about who will get your things is a crucial part of planning, should the worst happen. 

You might be making a will for the first time. Or you might have an old will sitting in a filing cabinet. Maybe you’ve since had kids, or gotten married or divorced. The bottom line is: if you’re an adult with any sort of assets or dependents, you should have a will that reflects your current wishes and circumstances.

A will lets you name a guardian for any minor children you have. You should also provide some money for the guardian to cover the costs of raising your children. 

An effective will considers likely scenarios, and puts plans in place should they occur. The risk of coronavirus in our communities has heightened our awareness (and need) for this level of planning. Some things to consider include:

• Your will should cover what you want to happen if both you and your spouse pass away. Have a contingency plan: decide who your things should go to if your spouse is no longer around, either.

• Your will should create a trust for gifts you leave to any minor beneficiaries. Otherwise, the minor’s share of the estate may need to be paid to the Public Guardian and Trustee — and they’ll hold onto it for the minor in trust until they turn 19. 

• When choosing a guardian, consider health factors. Are there any factors that may limit the person’s life expectancy or ability to parent? Consider whether coronavirus poses extra risks to the person’s health. Are they a frontline healthcare worker? Do they have a health condition that puts them at high risk? This doesn’t mean you shouldn’t choose the person you think is otherwise the best choice. Other factors (like shared values) are important, too! But make sure to name one or two backup guardians.

In your will, you must name a person ⁠— the executor ⁠— to carry out your instructions. There are a number of things to consider in choosing an executor. An executor should be someone you trust to carry out the instructions in your will. Most people ask a family member or close friend.

Your executor should be someone who’s likely to outlive you. Does coronavirus pose extra risks to the executor’s health? Are they in a high-risk category due to their occupation or underlying health conditions? This doesn’t mean you shouldn’t choose the person you want. But make sure to name one or two alternate (backup) executors.

If you’re worried about your immediate health

Plan ahead. Tell your executor where you keep your original will. Put it somewhere that's easy for them to access. As well, keep an up-to-date and detailed record of everything you own and owe. For example, record your bank accounts, retirement benefit plans, insurance policies, real estate, and pension benefits. Plus: note your digital passwords. These are like keys to your records, and will make life much easier for your executor.

Getting help from an experienced estates lawyer or notary public is the safest way to avoid mistakes. Knowing your will is properly drafted can give you peace of mind.

Wondering whether it’s possible to work with a lawyer or notary at a distance? Talk to a lawyer or notary about your particular circumstances and any concerns you have. Most should be able to work remotely to assist you at this time. Below, we discuss some options for signing and witnessing your will during coronavirus.

Notaries can prepare simple wills. Getting advice from a lawyer is particularly important when there are features such as a blended family, a charitable gift, property outside of British Columbia, a family business, a desire or need to hold property in trust for someone (such as a minor), or a wish to leave certain people out of your will.

A will can only be followed if it’s valid. If a will is proven in court to be invalid, the instructions in it will be ignored. If this happens, your most recent valid will must be followed instead. If you don’t have a previous will that is valid, your estate will be divided under the law as if there is no will.

Some common reasons why another person might challenge the validity of your will include:

• you didn’t understand what it said, when you made it

• it didn’t reflect your wishes

• someone pressured you or unduly influenced you to make the will, or a part of it

If you’re unwell or isolated, or if you make significant changes to your will shortly before you pass away that might attract suspicion, your will may be vulnerable to such challenges. Some steps you can take to reduce this risk include:

• Getting help from a lawyer or a notary public. A lawyer or notary must be satisfied that you’re mentally capable of making the will. And they should specifically look for suspicious circumstances.

• Making an electronic recording of the signing and witnessing of the will. This may be useful evidence if someone challenged the will in the future.

• Talking to the beneficiaries and anyone who might be expecting a gift under the will. Clearly express your wishes to your beneficiaries and let them know what the will says. You might also want to talk to anyone who might be expecting a gift, but won’t be receiving one (such as an adult child). Hearing this directly from you may give them peace of mind about your true intentions, and avoid doubts later.

If your original will is in hardcopy form, you can make changes to your existing will by signing a separate document, called a codicil. To be legal, the codicil has to meet the same requirements as a will. For example, it must be in writing, dated, and signed by you and two witnesses.

If your original will is in electronic form, the only way you can change your will is by writing a new one.

For more, see our information on changing or cancelling a will.

Here, we walk you through the steps to prepare a will. Let’s review the formal requirements of making a will that is legally valid:

• The will must be in writing. It can be typed, handwritten, or in electronic form. 

• You must sign the last page of the will. You can use an electronic signature. You must also date the will when you sign it.

• Your signature must be witnessed by two other adults who are present at the time you sign. The two witnesses must then sign the will in your presence. You and the witnesses should initial each page of the will in front of each other. 

It’s always good practice for the witnesses not to be executors or beneficiaries under the will — or their spouses. This might be difficult depending on shifting public health measures or your specific circumstances (for example, if you’re isolating with family).

Think of anyone else who can safely meet with you, who doesn’t have an interest in the will. Roommates, trusted neighbours, or co-workers (if you’re not working from home) might be good options.

If you feel there are no other options, a beneficiary can act as your witness. The risk is that your beneficiary will not receive their gift unless a court allows it. Your executor would have to apply to the court to show you did intend to make the gift. This takes time and money! And if the court isn’t satisfied, the witness can’t receive the gift. Either way, be aware that the remainder of the will isn’t affected. You should talk to a lawyer before having any beneficiary act as your witness.

Option 1. Sign and witness remotely

The law now allows a will to be signed electronically and to be witnessed remotely. We explain electronic signatures in our information on preparing a will (see step 5, signing the will).

Here’s more on remote witnessing. Previously, two witnesses had to be physically present to watch you sign your will, in order for the will to be valid. Now, you and your witnesses can be in each other’s electronic presence. There are specific requirements involved:

• You must use audiovisual communication technology (such as Zoom or Facetime) that allows you to hear and see each other.

• You must be able to communicate simultaneously, in a way that is similar to communication that would occur if you were all physically present in the same location. 

• You must sign complete and identical copies of the will.

Here's an example of what remote witnessing might look like. You and your witnesses might connect on a video call, each with an identical copy of the will, and watch each other sign the document. After signing, you can show your signature to the witnesses on camera and acknowledge it as yours. And vice versa.

Here are some variations of how this might work:

• You can sign in the physical presence of one of your witnesses, while your other witness watches on remotely. 

• Your witnesses can be physically present together, and both can watch on remotely as you sign.

• You, your first witness, and your second witness can each be physically separate, but simultaneously connect electronically for the signing and witnessing of the will.

Option 2. Sign and witness in person, while physical distancing 

Signing a will while physically present with your witnesses presents challenges during a pandemic. For one thing, how do you safely maintain your distance? It is possible to sign and witness at a safe distance; it may just take some creativity! 

We offer these practical tips:

• Ideally, the signing should be done outside.

• Each person should stay at least two metres away from every other person.

• Everyone should bring their own pens.

• Bring a mask and use hand sanitizer.

• Be hyper aware of personal hygiene. Don’t lick your fingers to turn the pages of the will! Don’t touch your face. Wash your hands thoroughly with soap once you’ve finished. 

• And critically: follow guidance given by public health authorities and your own health care providers. 

You might consider the following creative solutions:

• Sign and witness at a two-metre distance. Set up a table outside (say, in your yard). Each person stands at least two metres away from the table, and each other. The witnesses watch as you step up to sign. The witnesses each take their turn to step up to sign.

• Sign and witness through a window. If you feel that you or your witnesses need an extra layer of protection, you can sign your will in the safety of your own car, or home, with your witnesses watching on through a window. Open the window and pass your will to each witness, for each of them to sign. Again, each person brings their own pen.