Will Signing during COVID-19

Associated Areas of law

With the ongoing pandemic, many Canadians are concerned about updating their will to ensure that their families are looked after. There are several elements a will must have in order to be valid under Nova Scotian law. These elements include:

  • That the will is in writing;
  • That it is signed by the person for whom the will is drafted; and
  • That two or more people attest to having witnessed the will being signed.

Obviously, while the province is in a state of emergency and we are all social distancing, this last element is difficult to satisfy.

In some cases, it may be possible to witness a will without breaking social distancing protocols. For example, a lawyer could confirm the contents of a will with you, then send you the will by mail or email. Once you have received or printed a hard copy, you could have friends or neighbours (as long as they are not named as beneficiaries in the will) witness at a safe distance from outside the home, through a door or window. You could then leave the documents outside for the witnesses to pick up and sign, attesting that they witnessed the signature. Other variations of this approach might include signing documents in adjacent cars or outdoors at a safe distance.

It may not be possible for all people to sign their wills in the presence of two witnesses while remaining physically distant. This may be a particular concern for those who have contracted COVID-19 or those in a vulnerable population.

In these cases, it may be necessary to consider more novel methods, such as the use of a live video link (e.g., Zoom, Skype, or Facetime) to witness will signings. It remains uncertain whether a “virtual signing” would meet the formal requirements referenced above. However, the Nova Scotia Wills Act does enable a court to waive those requirements if it can be shown that the will clearly reflects the will-maker’s intentions.

While virtual signings may be necessary in certain situations, they should be used only as an emergency measure, and only on a temporary basis. Since the legal status of virtual signings remains unsettled, it will be important to have the documents re-signed in person once the risk of doing so is lessened and the state of emergency is lifted.

Whatever the circumstances, we strongly recommend that you consult with a lawyer when making your will. Your lawyer can keep a detailed record of your wishes, as well as the circumstances in which your will was signed. This could make all the difference, should there ever be a need for the court to consider the validity of your will.

Patterson Law is here to help. We have provided some things to think about above, but each person’s situation is unique, and these are general considerations only. We recommend speaking with a lawyer to determine the best way to ensure your wishes are respected, while keeping everybody safe during this difficult time. For more information on having your will signed while social distancing, please contact our Wills and Estates Group.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer or other professional. For specific technical or legal advice on the information provided and related topics, please contact the author. This document was authored by Adam Norton and Matt MacLellan. Please reach out to us with any questions you may have.