A Wrench in the Ability to Witness Wills Remotely

As the COVID-19 pandemic continues to impact our day to day lives, businesses across the Province and across Canada continue to work tirelessly to adapt as best they can to the ever-evolving medical and social precautions necessitated by the virus. The law is no different. 

The execution of a Will has always been something that is done in person, as the Wills and Succession Act in Alberta requires that a testator sign their Will before two witnesses. These witnesses also bear their signature to the Will in acknowledgement of witnessing the testator’s signature, thereby creating a valid, formal Will. The social-distancing mandate of COVID-19 has pushed lawmakers to accommodate this practice to ensure that individuals are still able to make a Will during the pandemic, while maintaining a safe distance from one another.

Alberta’s Justice Minister proclaimed Ministerial Order 39/2020 (the “M.O.”) on May 15, 2020, which permitted the remote witnessing of Wills. However, as the Wills and Estates Bar has started putting the remote witnessing of Wills into practice, it was discovered that the M.O. has one serious deficiency: it does not specifically authorize the signing of Wills in counterpart. The Court of King's Bench of Alberta has confirmed that it will not accept counterpart execution pages of Wills. This is a critical impairment to the ability to remotely witness a Will and the utility of the M.O.

The issue of allowing signatures in counterpart has been directly addressed in legislation in other provinces, such as British Columbia and Ontario. We anticipate that the Alberta government will follow suit and amend the M.O. to allow for counterpart execution. Unless and until the M.O. is amended, a Will should not executed in counterpart.  

The Wills and Estates team at McLennan Ross LLP will continue to monitor the situation, and provide updates as new information becomes available. In the meantime, we would be happy to assist you with your Will, Power of Attorney and Personal Directive.