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Difference between revisions of "Making and Executing a Will (16:III)"

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Making and Executing a Will (16:III) (view source)

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Both witnesses must also attest after the will-maker makes or acknowledges their signature in their joint presence. Though they need not sign in each other’s presence, they must each sign in the presence of the will-maker who must actually see or be able to see the witnesses sign (''WESA'', s 37(1)(c)). '''Attesting witnesses must be able to confirm the will-maker’s execution of the will; they do not need to be aware of the contents of the will'''.
Both witnesses must also attest after the will-maker makes or acknowledges their signature in their joint presence. Though they need not sign in each other’s presence, they must each sign in the presence of the will-maker who must actually see or be able to see the witnesses sign (''WESA'', s 37(1)(c)). '''Attesting witnesses must be able to confirm the will-maker’s execution of the will; they do not need to be aware of the contents of the will'''.


On August 14, 2020, ''Bill 21'' received Royal Assent and made significant changes regarding the ''WESA'' presence requirements for witnessing a will. ''Bill 21'' added section 35.2 to ''WESA'', which allows individuals to be in each other’s “electronic presence” to satisfy the requirement that a person take an action in the presence of another person, or while other persons are present at the same time. Electronic presence is defined as “the circumstances in which 2 or more persons in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the persons were physically present in the same location” (''WESA'', s 35.1).
Section 35.2 of ''WESA'' states that individuals are allowed to be in each other’s “electronic presence” to satisfy the requirement that a person take an action in the presence of another person, or while other persons are present at the same time. Electronic presence is defined as “the circumstances in which 2 or more persons in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the persons were physically present in the same location” (''WESA'', s 35.1).


This means that signing parties may be physically or electronically present for the execution and witnessing of a will to satisfy the presence requirements of ''WESA'' sections 37(1)(b) and (c). If a will-maker and witnesses are in each other’s electronic presence, the will may be made by signing complete and identical copies of the will in counterpart, and those copies of the will in counterpart are deemed to be identical even if there are slight differences in the format of the copies (''WESA'', s 35.2).
This means that signing parties may be physically or electronically present for the execution and witnessing of a will to satisfy the presence requirements of ''WESA'' sections 37(1)(b) and (c). If a will-maker and witnesses are in each other’s electronic presence, the will may be made by signing complete and identical copies of the will in counterpart, and those copies of the will in counterpart are deemed to be identical even if there are slight differences in the format of the copies (''WESA'', s 35.2).


The electronic presence amendments in ''Bill 21'' are effective retroactively beginning on March 18, 2020. Before ''Bill 21'', Ministerial Order No. 161 (the “Order”) allowed for electronic witnessing of wills in response to the COVID-19 pandemic.
See '''Section III.D.2: Electronic Wills''', for two potential scenarios of how to be in someone’s “electronic presence.”
 
The requirements for electronic witnessing under the Order are slightly different from the requirements laid out in ''Bill 21''. The Order required that one of the witnesses be a lawyer or notary public, and also required that the will include a statement saying that it was signed and witnessed in accordance with the Order. Section 11(3) of ''Bill 21'' stipulates that a will made on or after March 18, 2020 that complies with section 35.2 of the ''WESA'' may be valid, whether or not it purports to have been made under the Order. ''Bill 21'' contains a provision which will eventually repeal the Order, however that section as well as several other sections of ''Bill 21'' have not yet been brought into force. See '''Section III.D.2: Electronic Wills''', above for more information on ''Bill 21''.  


==== b) Competence of Witnesses ====
==== b) Competence of Witnesses ====
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