COVID-19 Update: Ministerial Orders Provide for Virtual Execution of Wills, Enduring Powers of Attorney and Representation Agreements

In response to the COVID-19 pandemic, the Minister of Public Safety and Solicitor General has issued ministerial orders providing for the virtual execution of wills, enduring powers of attorney and representation agreements.

Wills

Ministerial Order M161 (“M161”) sets out the process for the remote execution of wills. It provides that a will made in accordance with M161 satisfies the requirements for execution of wills set out in sections 37(1)(b) and (c) of the Wills, Estates and Succession Act (“WESA”). Those provisions in WESA require the will-maker and two witnesses to be physically present together when the will is executed.

M161 provides that, when making a will, the will may be signed and witnessed while the will-maker and the witnesses to the will are in each other’s electronic presence. “Electronic presence” or “electronically present” is defined in M161 as follows:

the circumstances in which 2 or more individuals in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the individuals were physically present in the same location.

“communicate” is defined in M161 as follows:

“communicate” means communicate using audiovisual communication technology including assistive technology for individuals who are hearing impaired or visually impaired, that enables individuals to communicate with each other by hearing and seeing each other.

M161 provides further that:

• At least one of the witnesses must be a lawyer or notary public.
• The will may be made by signing complete and identical copies of the will in counterpart.
• For clarity, copies of a will are identical even if there are non-substantive differences in the format between the copies.

A will made in accordance with M161 must include a statement that it was signed and witnessed in accordance with Ministerial Order M161.

Enduring Powers of Attorney

Ministerial Order M162 (“M162”) sets out the process for the remote execution of enduring powers of attorney and representation agreements. For the purposes of M162, the words “communicate”, “electronic presence” and “electronically present” have the same definitions as those provided in M161.

M162 provides that enduring powers of attorney signed and witness in accordance with M162 satisfy the requirements set out in section 16 of the Power of Attorney Act for the power of attorney to be signed by the person making the power of attorney in the presence of two witnesses. It also satisfies the requirement in section 17 of the Power of Attorney Act that the person accepting appointment as attorney under an enduring power of attorney sign the power of attorney in the presence of two witnesses.

M162 provides as follows:

• When making an enduring power of attorney, the enduring power of attorney may be signed and witnessed while the following are in each other’s electronic presence:
  • the adult making the enduring power of attorney, and, if applicable the person signing the enduring power of attorney on behalf of the adult who makes the enduring power of attorney; and
  • the witness.
• The witness must be a lawyer or notary public.
• Before exercising authority granted in an enduring power of attorney, the enduring power of attorney may be signed and witnessed while the attorney and the witness are in each other’s electronic presence. As with the virtual making of an enduring power of attorney, the witness must be a lawyer or notary public.
• An enduring power of attorney may be signed by signing complete and identical copies of the enduring power of attorney in counterpart.
• For clarity, copies of an enduring power of attorney are identical even if there are non-substantive difference in the format between the copies.

An enduring power of attorney made in accordance with M162 must include a statement that it was signed and witnessed in accordance with Ministerial Order M162.

Representation Agreements

The Representation Agreement Act provides at section 13(3.01) that the signature of an adult making a representation agreement must be witnessed by two witnesses, each of whom must sign the representation agreement. Section 13(4)(b) of the Representation Agreement Act provides that when a person signs a representation agreement on behalf of the adult making that representation agreement, the adult and the person signing must be physically present together.

M162 provides that the requirements to be physically present as set out in sections 13(3.01) and 13(4)(b) of the Representation Agreement Act are satisfied when a representation agreement is signed and witnessed in accordance with M162. M162 provides that:

• When making a representation agreement, the representation agreement may be signed and witnessed when the following are in each other’s electronic presence:
  • the adult who makes the representation agreement, and, if applicable, the person signing the representation agreement on behalf of the adult who makes the representation agreement; and
  • the witness.
• One of the witnesses must be a lawyer or notary public.
• A representation agreement may be signed by signing complete and identical copies of the representation agreement in counterpart.
• Copies of a representation agreement are identical even if there are non-substantive differences in the format between the copies.

A representation agreement made in accordance with M162 must include a statement that it was signed and witnessed in accordance with Ministerial Order M162.

Nothing in M161 or M162 prevents some of the individuals from being physically present during the execution of wills, enduring powers of attorney or representation agreements. As such, execution of those documents may take place with some individuals physically present and others electronically present, as necessary. Both orders M161 and M162 are effective as of May 19, 2020 and will remain in effect until the date on which the last extension of the declaration of a state of emergency made March 18, 2020 expires or is cancelled.

EKB’s Estate Planning and Litigation team is eager to assist you with any of your estate planning needs. To find out more about how Ministerial Orders M161 and M162 apply to your situation, contact Tom Clarke.

Read more EKB Updates about the legal implications of COVID-19 and the impact on B.C. business.