Lowering Risks in Remote Witnessing of Wills and POAs
The Law Society of Saskatchewan’s latest blog post includes guidance on how to lessen the risk of complaints or malpractice when remote witnessing the signing of Wills documents. The full post is available here, with a summary below.
Protecting Yourself and Your Practice
Know Your Client: Verify the identity of the testator and witnesses in the video conferences, and ensure to save images of all IDs you review during the meeting. Ask the testator about their assets and whether or not they have a prior Will. The testator’s children and marital relationships (past and current) should be investigated.
You’re still responsible for ensuring the testator understands the documents that are being executed and they have the capacity to sign. If you have doubts about their capacity, you may want to take note as to how you determined their capacity (or ask for a second opinion).
The task of identifying undue influence on the testator might be more difficult through video conferencing. But if you ask your client and the witnesses to scan the room with their camera, it’ll provide you with an idea as to what and who is in the room.
The LDD Remote Signing Portal contains tools and guidance
to address the Know Your Client and undue influence concerns.
Minute Taking: Proper documentation of what happened and what was said is critical when video conferencing. You never know what the future might bring, and if needed, you’ll want proper notes as to what occurred.
Our Video Conference Checklist can assist you in keeping notes during your virtual meeting.
Follow-up After the State of Emergency: Even though following all the procedures outlined in the Law Society of Saskatchewan’s Practice Directives will ensure that any Powers of Attorney or Wills are valid. It might be wise to follow-up with your clients who signed Powers of Attorney and Wills remotely, and see if they want to revise and sign new documents in-person.
Applicable Legislation
The above is good advice for Wills and Powers of Attorney but the principles also apply to land registry documents executed remotely. The following legislation was enacted making it possible to remotely sign these documents in Saskatchewan:
The Land Titles (Public Emergencies) Amendment Regulations, 2020 (impacting The Land Titles Regulations, 2001);
The Electronic Information and Documents (Public Emergencies) Regulations (impacting The Electronic Information and Documents Act, 2000) (EIDA);
The Powers of Attorney (Public Emergencies) Regulations (impacting The Powers of Attorney Act, 2002); and
As mentioned in our Remote Signing and Will protocol documents, a Form PD1 or Form PD3 has to be completed for every Power of Attorney or Will is witnessed using video conferencing (or some other form of electronic means). In addition the Affidavit of Execution of Will and any application jurats in other documents are required to properly reflect how they were signed.
Learn more about remote signing for your Wills files.