Signing Estate Planning Documents in New Brunswick During COVID-19
Until recently, New Brunswick law required that individuals meet in the physical presence of witnesses – and in certain cases, lawyers – to execute a valid Will or Enduring Power of Attorney. On December 18, 2020, in response to the COVID-19 pandemic, which made in-person meetings more difficult and less safe, the New Brunswick Wills Act and Enduring Powers of Attorney Act were each amended to allow for remote witnessing of Wills and Enduring Powers of Attorney. These amendments are temporary and remain in effect until December 31, 2022.
Remote Execution – How it Works
The amendments to each of the above-mentioned statutes allow for documents to be executed using an “electronic means of communication”, which the amendments define as a means of communication in which all persons are able to see, hear, and communicate with one another in real time, to the same extent as if they were communicating in person, in the same location.
While these amendments are in effect, individuals may execute Wills and Enduring Powers of Attorney without being in the physical presence of witnesses. In order to execute a valid Enduring Power of Attorney remotely, the document must be signed and witnessed by a practising lawyer, using an electronic means of communication. In order to execute a valid Will remotely, the document must be signed and witnessed by a practising lawyer and at least one other individual (who is not a beneficiary named in the Will) using an electronic means of communication.
When Wills or Enduring Powers of Attorney are signed and witnessed remotely, each party must still sign the document in pen – electronic signatures are not permitted on Wills for probate purposes and are not recommended on Enduring Powers of Attorney. However, for convenience, the amendments allow Wills and Enduring Powers of Attorney to be signed in counterparts (i.e. each party signs a separate version of the same document) and all original signed counterparts taken together are considered a single, original document.
When documents are signed and witnessed remotely, the practising lawyer who witnessed the execution of the documents must include a statement with the completed documents to confirm the documents were signed and witnessed using an electronic means of communication in accordance with applicable legislation.
Benefits of Remote Execution
The primary benefit of these amendments is that they make it more convenient for individuals in many situations to execute valid Wills and Enduring Powers of Attorney. The more flexible “remote execution” procedures permitted by these amendments allow individuals to execute Wills, Enduring Powers of Attorney, or revisions to these documents from the comfort of their home (assuming they have access to an electronic means of communication). Before these amendments, these same individuals may not have been able to meet with witnesses to sign documents in person, whether due to COVID-19 or other health concerns, physical limitations, lack of transportation, etc., and it would therefore have been difficult for them to execute valid documents in accordance with applicable laws.
Potential Issues with Remote Execution
As with most legislative changes, these amendments are not without potential drawbacks. Individuals and practising lawyers alike should be mindful of the following points when considering signing Wills or Enduring Powers of Attorney remotely:
- Signing and witnessing documents using an electronic means of communication requires that all parties have reliable internet service and sufficient technological skills to use the chosen electronic means of communication properly and effectively;
- It is easier for a lawyer to explain documents and evaluate an individual’s mental capacity when all parties are physically together in the same room; the same is true for a lawyer’s ability to gauge whether an individual is signing documents under duress or in response to other inappropriate influences. In the context of remote execution, lawyers must be extra careful to ensure the individual understands the nature and effect of the documents they are signing, and is signing them voluntarily;
- Because remote execution of Wills and Enduring Powers of Attorney is new (and temporary), the fact that documents were signed and witnessed by electronic means of communication may lead to more parties contesting the validity of Wills and Enduring Powers of Attorney.
For individuals who are not willing or able to attend a lawyer’s office to sign Wills or Enduring Powers of Attorney, the remote execution procedures permitted by these amendments will be helpful. They add flexibility to the estate planning process and make it easier for certain individuals to execute valid Wills and Enduring Powers of Attorney.
However, while remote execution of Wills and Enduring Powers of Attorney may be appropriate in certain situations, it should only be used when traditional execution (i.e. where all parties are physically in the presence of each other) is not possible or practical.
If you have any questions about this topic or about estate planning generally, please contact Adam King or Véronique Guitard, who are both members of Cox & Palmer’s Estates Group.