Our Views

Wills and estate planning take on new urgency

We all know that the economic and social consequences of the COVID-19 crisis have been widespread and far-reaching. One lesser-known upshot is an exponential surge in demand for will and estate planning services among high net-worth individuals (especially seniors).

“We’ve been getting a lot of calls from high-net-worth individuals who had been thinking of updating their wills, or who were in the process of making changes, and are now accelerating that timeline,” explains Ed Esposto, an estate lawyer and partner with Toronto-based law firm Aird & Berlis LLP.

But with physical access to most clients restricted due to social distancing measures—and overwhelmed lawyers’ time even harder to secure—he’s advising people to act now if they need to draft or change a will.

One reason is that if you fall ill with COVID-19 (or any sickness, for that matter), you may lack the capacity to provide instructions to your lawyer to prepare the document. Another is that estate planning takes time and careful consideration. The more you have, the more effective your decisions will be in areas such as tax planning. The better the decisions at the planning stage, the less likelihood of inefficiencies, ambiguities and even litigation if the will is challenged.

Of course, the best reason to act without delay is the worst-case scenario—passing away without a will and estate plan leaves family members with a tremendously complex legal mess to untangle.

“If you leave it too long,” Esposto cautions, “it may be too late.”

The social distancing dilemma

Under the Succession Law Reform Act of Ontario, 1990, in order to validly execute a will, it must be co-signed in the physical presence of two witnesses.

That’s presenting challenges in the midst of a pandemic where social distancing measures are in place and some clients are ill or in isolation. Until recently, that made it extraordinarily difficult to manage what would normally be a straightforward process.

Emergency measures in place for will signing

In Ontario, for example, the government has taken temporary measures to make the drafting of wills (and the signing of other legal documents) easier until social-distancing measures can be eased.

Queen’s Park issued two orders in council under the Emergency Management and Civil Protection Act, 1990, declaring that during the emergency, video witnessing would be permitted and that a will could be signed in counterparts. This means that a client, or testator, can have a video conference with two witnesses (one of whom must be a licensee under the Law Society Act, such as a lawyer or paralegal), with a version of the document at each location.

All parties would log on to the call and watch as the testator signs one copy of the will, while the two witnesses sign a separate copy of the will at their location. The two documents combined would constitute the valid will.

A lingering issue revolves around ill people in isolation who don’t have access to video technology, or who wouldn’t be able to operate it even if they did. “They don’t have a solution right now,” says Esposto.

Backyard wills

To what lengths are lawyers going to help clients sign new or updated wills?

For the first time ever, Esposto and his colleagues are doing ‘backyard signings’ where lawyers are being joined in a backyard by the client and a witness. The lawyer places a will on a table or in a space accessible to all three. They then take turns signing the document, careful to respect physical distancing requirements.

He’s even heard of lawyers taking the same steps, but over the hood of a parked car.

“As long as everyone can see everyone else signing the document, that suffices,” he points out.

What you’ll need to prepare

When time is of the essence, it’s important to be prepared to deliver adequate instruction to your lawyer during an initial estate-planning meeting, covering everything from family to financial matters.

Having a fulsome understanding of your personal assets and other key points to cover in a will is crucial. The availability of your accountant and/or portfolio manager to answer any questions and provide financial or other information, is another factor.

“There could be major potential income tax consequences that will apply when a person dies that you need to consider when doing estate planning, and generally most people aren’t aware of those consequences—you need specialists to help you with that,” Esposto stresses.

Some high-level points to consider include:

  • The nature of all of your assets value and scope of your investments, properties, business interests, collectibles
  • Financial dependents that must be provided for in your will (to avoid potential challenges under the Succession Law Reform Act) such as minor or disabled children, a common law spouse or anyone you provide regular financial support to e.g. elderly parents, adult children
  • Creditor obligations such as outstanding loans, obligations

Something is better than nothing

The ultimate goal, says Esposto, is to avoid creating a will that will embroil your estate in costly and avoidable litigation—even if it’s not perfect.

“We’re advising clients that if they don’t have a will, to get it done because having something done is better than nothing. Once the emergency is over, we can have another discussion about what they’re contemplating and revisit the process to make sure everything is covered.”