With the Coronavirus making its way through Canada, I’ve received a number of calls about estate planning. Death, it seems, is on everyone’s mind. Here are some thoughts on this challenging issue and how it could affect your estate plans during the pandemic.
All of this information is accurate as of April 15, 2020. I urge you to look for current information in addition to what you find here.
Have your will made by a professional
Lawyers and Notaries are essential service providers and as such, we are all still open for business. Most of us have found ways of complying with social distancing requirements for the safety of our staff and clients. At this time you can still book an appointment with us in person.
Some folks have requested to meet remotely during this time. Until recently, this would have been impossible. However, in consideration of the current pandemic the Law Society has made some changes to their rules around client meetings. We can now use video conferencing to meet with our clients in certain circumstances. Examples of these circumstances are self isolation or the protection of immunity compromised people during the Covid-19 outbreak.
We are still required to identify our clients. Video conferencing changes how we confirm our client’s identity. Please bear with us while we get the hang of that. We will ask that you provide us with copies of identification prior to the meeting. We will also ask that you show us the original identification during the meeting in order to compare it to our copy.
Additionally, we still have to assess the capacity of a client. Video conferencing presents a challenge when establishing capacity since it is more difficult to assess someone’s capacity without the subtle cues of body language. We may ask more questions than normal in an effort to determine capacity.
Finally, we also have to consider whether any undue influence is being exerted by another person. One way we may do this is by asking you to 360′ view of the room. This enables us to see who else is in the room with you.
In person meetings to provide instructions for wills is still the best option; however for those who are self-isolating or residents in a care home in lockdown, videoconferencing may be their only option.
Make your own will
You can still make a will yourself or with the assistance of a Will kit. These wills must still comply with the requirements set out in the Wills, Estate and Succession Act. One of these requirements is that two people who are not beneficiaries or the spouses of your beneficiaries are to witness you sign your will. The witnesses must then sign your will in each others presence. This presents a challenge when you may not have two such people easily available to act as witnesses. With all of the physical distancing requirements, it may be impossible to find two people willing to act as witnesses.
You cannot create a Will by your own hand without any witnesses (called a “holograph will”). Holograph wills are not valid in B.C.. While there is a law that allows a judge to accept a holograph will as being a valid will, this process is expensive and success is not guaranteed. This process would cost significantly more than what a professional will charge to prepare a will for you.
Modifying your old will
It is common for people to have an old will from a prior time in their life. Sometimes people will have a will that names an executor who is no longer living. Another common problem is a will that makes a gift of property the will-maker no longer owns. Often people just want to change that section of the will while keeping the rest.
Unfortunately, it’s not that simple. You cannot just cross out names and write in new ones, or put new gifts in the margins. I would recommend consultation with a professional to determine how best to proceed.
Your circumstances are personal, and subject to change. Take some time to consider your wishes and the best way to accomplish those wishes. Discuss it with your family as well.
We are here to help in any way we can. Stay safe.April 16, 2020 3:16 pm