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Preparing will and power of attorney for challenging times

Thursday, May 14, 2020 @ 8:40 AM | By Juliet Mendonca

Juliet Mendonca %>
Juliet Mendonca
It was the year 2019 and my professor at the law practice program asked a simple question in a room filled with 200 students: “How many of you already have a will?”

There was a complete silence and then only a few students raised their hands. When the question was raised, I am certain it got many of us thinking: Do we need to prepare a will? Is there a right time to prepare a will and power of attorney? What do we write in a will, if we don’t possess any assets? Why should we have a power of attorney for personal care and property, unless we are on the verge of becoming incapable or incompetent?

In 2018 the Angus Reid Institute, Canada’s non-profit foundation committed to independent research, conducted a survey which showed that half of Canadians do not have a will. The evaluation demonstrated that 51 per cent of Canadians claimed of never having prepared a will in their lifetime and only 35 per cent of Canadians — one-third of the population — had an updated will.  

Get acquainted with virtual meetings

That was then and this is now. Amidst the COVID-19 situation we have seen lots of articles regarding more individuals going ahead to prepare or amend their wills and power of attorneys.

On April 8, 2020, in Ontario, the lieutenant governor-in-council made an order under s. 7.0.2(4), of the Emergency Management and Civil Procedure Act facilitating virtual witnessing of both wills and powers of attorneys, as long as one person who is providing the service as a witness is a licensee pursuant to the Law Society Act. The order is not retroactive and will be in place for the duration of the declaration of emergency. This has raised several questions in the legal fraternity as many are apprehensive witnessing a will on a virtual platform.

Having been a practising lawyer for the last 35 years, my father has drafted and prepared several wills and power of attorneys for property and personal care. He always told me that, “a will is a document which must be drafted with utmost precision. As solicitors it is our obligation to draft it as per the testator’s wish. The testator will die someday, but the will remains eternal.” A solicitor has a highest level of professional obligation while drafting a will so as to avoid future litigation and has a greater responsibility to check for client’s testamentary capacity, possibility of coercion and undue influence.

During my Law Practice Program online training component, I vividly remember the virtual interview with my client who wanted to prepare her will. Let’s assume her name was Claire and she was an elderly woman about 70 years of age, having two daughters Jane and Anna. When speaking with Claire virtually, she provided me with instructions to write her will. At that moment, I can only assume that Claire was all by herself in that room. Claire expressed her intentions to bequest a greater portion of her estate to Jane and make her a sole executor for the will and testament. At that point, how do we determine that Jane is not in that room? How do we establish that someone is not overhearing our conversation? Considering Claire is not very good with technology like using apps and software, how did she get connected to WebEx (it does require some training)? Was she helped by someone who might be in that room at that very moment?

These are questions to think about when meeting with a client on a virtual platform. An individual may be coerced, intimidated or persuaded to prepare a will or power of attorney. Even so, it is more difficult for a solicitor retained to draft a will to determine the testator’s testamentary capacity, intentions and undue influence, on a virtual site. Estate practitioners have to become even more attentive, observant and vigilant than ever.

Juliet Mendonca is a lawyer licensing candidate who was enrolled in the Law Practice Program at Ryerson University. She completed her work placement with Garfin Zeidenberg LLP and is currently preparing for her bar examinations.

Photo credit / gustavofrazao ISTOCKPHOTO.COM

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