Recent changes to legislation in Alberta allow for ongoing remote execution of Wills, Powers of Attorney, and Personal Directives in the Province of Alberta. The ability to execute these documents remotely was initially introduced as a temporary measure in response to the COVID-19 pandemic, as prior to the COVID-19 pandemic, these documents had to be signed by an individual and their witnesses together in-person and there was no ability to sign them remotely. The legislative changes adopt the remote execution process on an ongoing basis.
The process for remote execution of Wills is outlined in the Wills and Succession Act, SA 2010 c W-12.2. In order for these documents to be validly executed, a specific process must be followed. First, the testator and the witnesses must execute the documents while connected through electronic means with which they are able to see, hear, and communicate with each other in real time. During a remote signing, the testator and the witnesses must each go through and initial each page of an identical copy of the Will and execute the signature page of the Will. The wet-ink counterparts signed by each of the testator and their witnesses are then combined to constitute a valid Will. This differs from the process of an in-person signing, where the testator and their witnesses each initial and execute the same copy of the document. Through the remote execution process, a valid Will could consist of up to three identical copies of the same Will, all executed in counterpart, which can make for a voluminous document.
Importantly, the remote execution process is only permitted if one of the witnesses is a lawyer who is an active member pursuant to the Legal Professions Act, RSA 2000, c L-8 (the “Act”), and is providing the testator with legal advice respecting the making, signing, and witnesses of their Will. Therefore, the remove execution process cannot be followed if one of the witnesses to the testators Will is not a lawyer who is an active member pursuant to the Act.
Similarly, the Powers of Attorney Act, RSA 2000, c P-20, and Personal Directives Act, RSA 2000, c P-6, each establish an identical process for the remote execution of Powers of Attorney and Personal Directives, respectively, which is outlined above with respect to Wills. In addition to this, the signing of both the Power of Attorney and Personal Directive must be witnessed by a lawyer who is an active member pursuant to the Act and who provided the individual with legal advice regarding the making, signing, and witnesses of those documents.
The ability to execute estate planning documents remotely can reduce barriers for clients by eliminating travel time to their lawyer’s office for signing. However, it is important to note that, while remote execution is permitted, electronic signatures are not. The legislation still requires that original documents are executed in wet-ink and then combined to constitute a valid Will, Power of Attorney or Personal Directive.
Bishop & McKenzie’s Wills and Estates group is equipped to prepare your estate planning documents for either remote or in-person execution. If you are considering making or revising your estate planning documents, please contact our team.
Author: Torey L. Lauber, Associate