Thursday, 21 May 2020

Electronic Signing for Wills, Personal Directives and Power of Attorneys


by Michelle Fong

On May 15, 2020, Ministerial Order 39/2020 was issued that allows for electronic signing of estate planning documents under certain circumstances.

Wills

Formal Wills[1] can be signed by all parties separately if all the following criteria are met:
      i.         An active Alberta lawyer must have been involved (legal advice and services) in regards to the Will, including the making, signing and witnessing of it; and
     ii.         Witnesses and the testator (or the person signing on behalf of the testator) all sign while connected by an electronic method of communication where they can see, hear and communicate in real time. Effectively, this means video conferencing.

Personal Directives and Powers of Attorney
Personal Directives and Powers of Attorney can be signed by all parties separately if all the following criteria are met:
    iii.         An active Alberta lawyer must have been involved (legal advice and services) in regards to the personal directive or power of attorney, including the making, signing and witnessing of it; and
   iv.         Witnesses and the maker/donor (or the person signing on behalf of the maker/donor) all sign while connected by an electronic method of communication where they can see, hear and communicate in real time. Effectively, this means video conferencing.
     v.         If you choose to use the Personal Directive form set out in the Regulations (Schedule 1), you must add the following wording at the end:

Note regarding signatures: In certain circumstances, persons are deemed to be in each other’s presence while connected to each other by an electronic method of communication in which they are able to see, hear and communicate with each other in real time. See section 5(1.1) and 5(1.2).”

However, even if you do not use the form set out in Schedule 1, it would be prudent to include this disclosure on the Personal Directive regardless. There is no form set out in the Power of Attorney Act but it is also recommended to include this disclosure in the Power of Attorney.

These electronic signing measures are temporary and will end 60 days after the Public State of Emergency Order lapses[2] or when it is terminated by the Minister or Lt. Governor.

Our McLennan Ross Wills & Estates Group would be happy to assist you with your Will, Power of Attorney and Personal Directive.




[1] Holographic Wills remain effective (fully handwritten). 
[2] Order in Council 080/2020

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