The best way to protect loved ones when a person has passed away is through a will. If a person does not have a valid will, they may be wondering whether they can create a valid will while still respecting social distancing or while being in isolation.
In order to execute a valid will, it must be signed by the testator (the person signing the will) in the presence of two witnesses. The witnesses cannot be beneficiaries, the spouse, or a common-law partner of a beneficiary under the will. Each page (other than the last page) must be initialed by the testator and the witnesses. Finally, the testator must be of eighteen years of age or older (with certain exceptions). The testator and the two witnesses must be physically present when the will is signed and initialed.
Given the requirements for a valid will, what options are available for a person in isolation? What if they can’t meet with two witnesses who are not also beneficiaries, the spouse, or a common-law partner of a beneficiary?
Sign a Holograph Will
A testator can create a valid will without the formal requirements if that will is written wholly in the person’s own handwriting and signed by the testator. It is also recommended that you date the will and initial each page (other than the last page). While holograph wills are generally not recommended as a replacement to a will carefully prepared by a lawyer, it can serve as a suitable short-term solution if executing a will in the presence of two witnesses is not possible or reasonable. Contact your lawyer to discuss this option and what details should go into a holograph will.
Sign a will through a barrier or by video conference
Recent changes made pursuant to an Order under the Emergency Measures Act (Manitoba), effective May 15th, 2020, have temporarily amended The Wills Act (Manitoba) to allow for the signing of a will by video conference. In order for a will to be signed by a video conference, one of the witnesses must be a practicing lawyer, and the testator and two witnesses must be able to see and hear each other. A will signed in accordance with the order given under the Emergency Measures Act (Manitoba) will be considered a valid, executed will.
If either of these two options are chosen, it is recommended that, when the COVID-19 pandemic subsides, a will is executed in the physical presence of your lawyer.