The pandemic and wills: How remote witnessing works

“With the pandemic scare still vivid, writing a will has moved from my should-do list to a top priority. I’m a health care worker. 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. That’s especially so during a time of uncertainty like the coronavirus pandemic. 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.

Previously, the law required that the will-maker and their witnesses had to be physically present together to watch each other sign the will, in order for the will to be valid. A permanent change in the law now allows a will to be witnessed remotely. The change allows for the will-maker and their witnesses to be in each other’s electronic presence.

In step 4 below we explain what’s required when a will (or codicil) is witnessed electronically.

Preparing a will involves making several key decisions.

Choosing your executor

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. Are they exposed to greater risk 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.

Deciding who you want to give your property to

Your next decision is to choose your beneficiaries. Beneficiaries are the people to whom you give your things. 

You may decide to give specific gifts, such as an amount of money or a specific item that you give to a person you name. You will also name one or more residual beneficiaries. These are the people who get the residue of the estate. The residue is whatever is left once the executor has paid all debts, expenses, and taxes, and distributed any specific gifts. 

If you have minor children

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 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? 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.

Most lawyers and notaries public are able to assist you in preparing a will and having it witnessed remotely. Getting help from an experienced estates lawyer or notary is the safest way to avoid mistakes. Knowing your will is properly drafted can give you peace of mind.

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.

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 key requirements of making a will that is legally valid:

• You must be mentally capable of making a will. You must, for example, understand that the will determines what will happen to your property after you die, and appreciate the nature and value of all of the property you own.

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

• The will must be properly signed and witnessed. You and two witnesses must sign the will in each other’s presence. More on this in steps 3 and 4, below.

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 your specific circumstances.

Think of anyone who can safely meet with you, who doesn’t have an interest in the will. Roommates, trusted neighbours, or co-workers 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.

For a will to be valid, it must be signed on the last page by the will-maker. You must also date the will when you sign it. As well, you should initial each page of the will. 

You must sign the will in front of two witnesses. More on this in the next step.

After your two witnesses see you sign the will, they must sign the will in front of you. Like you, they should initial each page of the will.

With the change in the law to allow a will to be witnessed remotely, 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.