A will is a legal document that communicates your intentions in the event of your death, outlining your desires regarding the distribution of your assets, and appointing guardianship for minor children. Permanent incapacitation without a will in place is known as dying intestate. In such cases, estates are divided using intestacy laws under the Wills, Estates and Succession Act of British Columbia (WESA). Unfortunately, that can mean your estate is not distributed how you want. Furthermore, your loved ones may end up with legal fees and unnecessary taxes.
Working with an experienced wills lawyer ensures that your will is accurate and valid under WESA, guaranteeing your wishes are carried out after your death. One criterion for a valid will is the signing and witnessing of that will in the presence of two witnesses. Despite the global COVID-19 pandemic, missing this step means the validity of your will could be challenged.
We’ll discuss how to ensure your wishes are respected in the unfortunate case of your death – even during this difficult time.
A valid will
Under WESA, key requirements for a will to be valid include that it must be in writing and signed by the will-maker or testator in the presence of two witnesses. These witnesses must be at least 19 years of age and cannot be beneficiaries named in the will. It is crucial that the witnesses be physically present, as they are required to sign an affidavit of execution verifying that the other witness was also there at the time of the will’s execution. This stipulation typically necessitates that your witnesses are in the same room – or physical space – with you.
With many people self-isolating due to COVID-19, fewer people are inclined to leave their communities to venture into urban centres or share a physical space with strangers. This can make it challenging to coordinate witnesses, clients, and their lawyer(s) coming together for the signing of a will.
Remote execution of a will
Alternative approaches are now in place to protect legal professionals and their clients, particularly immune-compromised seniors. In May 2020, emergency legislation was enacted allowing wills to be witnessed via videoconferencing, in the “electronic presence” of the testator, and signed and witnessed in counterpart copies. This means that everyone involved must have identical copies of the complete document.
Under this regulation, the testator and the witnesses should be able to communicate, i.e., see and hear each other, in real-time using videoconferencing software or an application such as Zoom or Skype. If an electronic method is being used, one of the witnesses must be a lawyer or a notary public licensed in British Columbia.
The order allowing the electronic witnessing of wills will stay in place as long as the pandemic-induced state of emergency remains in effect. Future amendments to the legislation have not been ruled out.
Wills lawyer in Surrey
Exercising caution to protect yourself and your family from contracting the COVID-19 virus is understandable and important. However, delaying the preparation of your will or opting to write it without the help of a knowledgeable wills lawyer could lead to a range of negative consequences for your family after your death. The experienced lawyers at Nirwan Law Corporation will prepare your will and protect your estate while easing your concerns about the pandemic. If you are ready to be proactive about putting your estate in order, give us a call at 604-372-0253 or contact us online for a free consultation.