Requirements under the Wills Act
Members continue to ask questions about their obligations under the Wills Act – here is some guidance.
Without a legislative amendment, the requirements for drafting a valid will under the Wills Act continue to apply. At this time, the Law Society is not aware of any movement on the government’s part to amend the Wills Act on an interim basis to deal with issues relating to the COVID-19 pandemic or the existing Pubic Health State of Emergency.
The Law Society understands that members are anxious about being able to fulfill the witnessing requirements of executing a will. Many approaches are possible so be sure to evaluate the risks of each approach and determine what is acceptable for each client – this determination turns on all sorts of factors including the client’s risk tolerance as well as your own. In order to inform your decision on how to fulfill your obligations to your clients, consider the following:
1. Review the requirements of the Wills Act – are there way to fulfill those requirements with less contact with others? Consider who can be a witness and speak to your client about what might be possible.
2. Do legal research – are there cases that contemplate situations where a lawyer cannot physically meet with a client to sign a will? Could they apply in this context? How have the requirements been interpreted in the past?
3. You may determine that you cannot avoid meeting with your client. If that is the case, consider where would be the best place to meet – is your office a good spot for a meeting under the current circumstances or would another location be more appropriate? And no matter where you meet, always practise good physical distancing and other hygienic practices, such as:
- reducing the number of people at the location;
- not shaking hands with others;
- sneezing and coughing into your elbow;
- washing your hands thoroughly before and after the meeting and asking your client to do the same;
- cleaning door handles, desks, phones, etc.;
- not touching your face and mouth, especially with unwashed hands; and
- answering questions over the phone or by video in advance of the meeting (see considerations about giving legal advice remotely below).
4. Research and consider whether a holograph will is a possibility for your client. If it is, be sure to walk your client through the process and ensure that your client understands the risks and the requirements. It is really important that if you give your client advice about drafting a holograph will, it is accurate and clear.
5. As noted in the FAQs on the COVID-19 webpage, if you decide to give legal advice remotely, it is recommended that you do the following in addition to your normal practice for client meetings and telephone calls:
- confirm the client’s consent to proceed in this manner;
- ask that all individuals in the remote location introduce themselves;
- ensure that there is no one else at the remote location who may be improperly influencing the client;
- make sure that audio and video feeds are stable and that you can hear and see all parties;
- where identification is produced to support verification of identity, ensure that a copy of the document is sent to you in advance of the online meeting and that when it is produced that the entire document is visible and legible;
- confirm the client’s understanding about the services they are receiving and provide adequate opportunity for them to ask questions; and
- maintain detailed records including the date, start and end times, method of communication, identity of all present and minutes of your discussions.
With respect to client capacity, be sure to consult the relevant legislation and case law that govern capacity and consider whether you can adequately assess a client’s capacity remotely.
Section 3.2-9 of the Code of Professional Conduct and its commentary also provide guidance on dealing with clients with diminished capacity.
And, as always, if the Law Society becomes aware of any amendments to the Wills Act that would affect the requirements for the execution of a valid will, it will communicate those changes to you.
Some of you have also been wondering whether you are permitted to keep your office open. The provincial government has indicated that all “non-retail businesses can stay open, as long as workers can maintain physical distancing. Workers cannot be within six feet of each other or the clients they serve.” For more information on exemptions or how this statement may be interpreted, email COVID19info@gov.nl.ca.
If you have questions about any of this information, please contact Brenda B. Grimes, QC, Executive Director of the Law Society, at firstname.lastname@example.org or (709) 722-4795.