We’ve connected with an expert to answer your questions about making a will and legacy giving during COVID-19. Read below as Gillian Crouch, a Wills and Estates Lawyer in Vancouver, answers some frequently asked questions around how can you complete your estate plan while still staying safe.
Q: Can I make a will right now?
Gillian: Absolutely! For many of us, the pandemic has brought thoughts of our own wellness and the health of those close to us to the forefront of our minds. Often, remembering to prepare or update our will goes hand-in-hand with facing our mortality.
Preparing and signing a will during the current COVID-19 crisis has some unique challenges but they’re not insurmountable. For example, many estate planning professionals are meeting with clients using video-conference technology in order to avoid being in close contact. When you do need to be in each other’s physical presence, meetings can be conducted outside (assuming confidentiality is maintained) or, if inside, at a reasonable distance with face masks. In fact, it’s a great time to do what you’ve always wanted to do when visiting a lawyer – sit end-to-end at one of those 20-person boardroom tables!
Q: What about signing my will? I’ve heard that I need to have witnesses to my signature in order for a will to be valid. How does that work if I’m immunocompromised or in isolation?
Gillian: Before the current COVID-19 crisis, a typical will in British Columbia was only valid if the will-maker signed the will in the physical presence of at least two witnesses who then signed the will in the physical presence of the will-maker. Social distancing policies have made this difficult or even impossible in many situations.
On May 19, 2020, the BC provincial government enacted emergency legislation that allowed wills to be witnessed in the “electronic presence” of the will-maker. Under this emergency legislation, the will-maker and witnesses (one of whom must be a lawyer or notary public) may execute a will by being in each other’s virtual presence with the aid of audio-visual communication technology (think Skype or Zoom). There are additional requirements not discussed here that your lawyer or notary will be aware of.
The ability to virtually witness wills pursuant to this emergency legislation will end when the provincial State of Emergency is no longer in effect. However, the BC legislature is considering amendments to the current legislation governing wills execution that would make virtual witnessing an option on a go-forward basis. Stay tuned!
Q: Who can witness a will? Can my family members be witnesses?
Gillian: Witnesses to a British Columbia will must be at least 19 years of age. Wills witnessed by persons under 19 may not be valid. While there is no prohibition against having a family member be a witness to your will, there may be unintended consequences in doing so. For example, a gift in a will is presumptively void if it is made to a witness of the will or to the spouse or common-law partner of that witness. If you have made a gift in your will to a family member and that family member witnesses your will, they may not receive the gift you intended to give to him or her.
Similarly, the BC Family Law Act provides that a named guardian cannot be a witness to the document appointing them as guardian. While the consequences of doing so are not expressly set out in the legislation, it is best practice to have someone other than the guardian witness your will just in case.
These are not the only issues that might arise depending on who your witnesses are, but they are common ones. When signing a will, it is important to get advice from your lawyer or notary.
Q: What if I want to include a gift for my favourite charity in my will?
Gillian: Even during the current emergency, many people have been reaching out to charities and giving what they can. If the current economic instability has meant that you have had to rethink your usual donations to your favourite charity, you might consider making a gift to that charity in your will or giving your executor the discretion to make such a gift out of your estate.
I encourage people considering making a gift to a charity in their will to chat with a professional advisor. There can be favourable tax consequences from having your estate make charitable gifts; enjoying those benefits, however, will often rely on appropriate drafting in your will. For example, there may be a benefit to donating certain assets (such as publicly traded securities) over others, and your advisor can walk you through why that may be the case.
All in all, charitable donations in your will are a great way of supporting those organizations that you may not have had the means to support during your lifetime, and with professional advice, your estate can enjoy benefits stemming from those donations as well.
Gillian Crouch is a Wills and Estates Lawyer in Vancouver who focuses on providing convenient, understandable and thorough legal advice to her clients. Gill works with clients to prepare Wills, Powers of Attorney, Trusts and other estate planning documents. She also advises executors during the estate administration process. She is a graduate of the University of British Columbia and King’s College, London. Gillian is the Secretary of the Canadian Bar Association Wills and Trusts Vancouver Section and an Associate Member of the Society of Trust and Estate Practitioners.
 The requirement that a will be witnessed by two persons does not apply to all wills in British Columbia. Exceptions to this requirement include, but are not limited to, wills of First Nations persons who meet the definition of “Indian” under the Indian Act and are ordinarily resident on reserve at death and the wills of a member of Canada’s military forces on active service.