April 3, 2020 — While we are witnessing the unfolding of unprecedented times, the coronavirus pandemic should also serve as a stark reminder of the importance of keeping your estate planning documents current. Although we do not presently and, perhaps will not for some time in the future, have the luxury of face-to-face personal meetings with our clients to review and up-date their estate plan, we are available remotely to serve clients’ needs in this extraordinarily challenging time.
Our Estate, Wills and Trust Practice Group wishes to remind you that there are strategies you can pursue and implement with us with respect to updating your estate plan that you have been putting off.
Self-Isolation: A Time to Reflect
Since everyone is living through extended periods of isolation at home, this may be the perfect time to review your will, power of attorney, protection mandate, advance medical directives and trusts, if you have a trust in place.
Now that we are faced with a clear and present danger, the “what-ifs” in our lives are viewed from a new perspective and situates us in another dimension.
Quarantine Dilemma and Execution of Documents
Up until quite recently, the quarantine measures posed a serious obstacle to implementation of an estate plan, especially with respect to the signing of a will.
In order for a will to be valid pursuant to the laws of Quebec, it must be made by a person who is capable and is not under any undue influence and it must be properly executed. Our law of wills in Quebec recognizes three forms of will: a holograph will, a will made in the presence of two witnesses and a notarial will.
The majority of wills in Quebec are made before a notary. A notarial will is the most desirable form because there is no requirement for probate, a judicial process to confirm the formalistic validity of the will, and therefore provides a high degree of confidentiality while avoiding costs and delays. The problem, however, is that quarantine and self-distancing restrictions prevented executing the will in the presence of a notary.
The alternative of having a holograph will which is entirely written (not typewritten or using a computer) and signed by the testator is a highly perilous one because it is vulnerable to misinterpretation which can lead to lengthy and expensive litigation for your loved ones after your death occurs.
The will made in the presence of two witnesses is also not a viable option given the quarantine and social distancing restrictions, since the testator and the witnesses must be in the presence of each other for the signing.
Quebec is Ahead of the Curve: Remote Execution of Documents
Much to the relief of estate practitioners and especially notaries, the Minister of Justice and Attorney General of Quebec, Sonia Lebel, has introduced overwhelming innovative relief measures with respect to the signing of notarial acts, including wills, powers of attorney and protection mandates. These measures will remain in force until the end of the current health emergency. Quebec is one of the first jurisdictions to our knowledge to enact legislation permitting electronic signing of wills.
The legislation supporting these measures has been adopted and is in force. The Board of Notaries collaborated with the legislator in seeking a solution to the situation of two colliding emergencies, being the pandemic and consequent quarantine and social distancing restrictions and the pressing need for estate planning for death and incapacity, especially for the most vulnerable sectors of the population.
The new legislation authorizes the remote execution of notarial acts, subject to the following conditions:
- the notary must be able to see and hear the parties to the act;
- each party or intervenor must be able to see and hear the notary;
- when the context requires (as in the case of a will which requires a witness), the witness must be able to see and hear the parties as well as the notary;
- the signatories and the notary must be able to see the document or, as the case may be, the part of the document which concerns them;
- the signatories, except the notary, must sign by an electronic method that permits their identification and consent; and
- the notary must sign with his/her official electronic signature.
The notary must ensure that the conservation and confidentiality of these documents as well as the signing process.
Our Estate, Wills and Trust Group, which includes William Dion-Bernard, a notary, are available to assist, advise and guide you in the estate planning and execution process.