Counterpart Execution of Wills and Powers of Attorney

Thanks to the swift response of the Attorney General, Doug Downey, Wills and PoAs can now be executed in counterpart.

The new emergency Order now confirms that a Will and Power of Attorney can be signed and subscribed by the witnesses on separate documents, in counterpart.

By using video conferencing and counterparts, wills and powers of attorney can be fully executed remotely, giving immediate validity to the documents. Previously, all three signatures (the testator/grantor and two witnesses) had to be on the same document. That required the couriering of the document around for up to three separate signing ceremonies. 

Here's how we envision the process now:

1. The testator/grantor will have the document in front of them.

2. Each of the two witness will have a copy of the document in front of them

3. Using audio-visual communication technology, the three participants will all be able to see and hear one another.

4. The testator/grantor will initial all of the pages and sign the document.

5. Each witness will then initial and sign his/her own copy of the document.

6. The Will/PoA consists of:

       a) one copy with the testator/grantor’s original wet signature;

       b) one copy with the first witness’s original wet signature; and

       c) one copy with the second witness’s original wet signature.

7. At that point, the Will/PoA has been validly executed.

8. The 3 counterparts should be brought together as soon as possible.

It important to take steps to ensure that the copy signed by the testator/grantor and the witnesses are the same. We recommend putting a unique identifier such as the date and time of the draft, in the document itself. This will help to confirm that the documents are identical.

There is an escape hatch if the copies are not identical but the differences are minor, non substantive in format or layout.

Checklists

We have created an updated checklist for consideration in these circumstances:

1. WILL EXECUTION IN COUNTERPART CHECKLIST (LINK TO CHECKLIST)
2. POA EXECUTION IN COUNTERPART CHECKLIST (LINK TO CHECKLIST)
   

Affidavit of Execution

We expect that counterpart execution will require a different affidavit of execution.

If each of the witnesses has executed a separate counterpart document, the Court will likely require two separate affidavits of execution, one from each witness.

For e-State Planner users the new affidavits of execution are now available as a template in your e-State portal. For anyone who is not yet an e-State Planner user, you can download it separately (click here to download)

Testimonial and Attestation Clauses

What should the Will’s attestation and testimonial clauses say when it is executed by counterpart?

In our view two distinguishing features in counterpart execution suggest that amended clauses should be considered:

   1.    A counterpart signed will, by its very nature, is clearly executed in an unusual manner; and

   2.    Counterpart execution is only available when coupled with audio-visual communication technology.

Thus, unlike execution under the original emergency Order which required 3 wet signatures on the same page (albeit signed at different times), it is apparent to anyone viewing the Will that it was signed in counterpart.  To be valid, it has to meet two other requirements:

   1.    It was executed using audio-visual communication technology;

   2.    One of the witnesses with a LSO licensee.

In light of that, and despite that the Succession Law Reform Act expressly confirms that no form of attestation is required, you may want to consider amending the testimonial and attestation clauses. We have some suggestions for wording available here (click here to download).

As always, we welcome your comments and suggestions.