The COVID-19 pandemic has many Ontarians creating or updating their wills, but the formalities of execution are at odds with the need for social distancing.

Ontario has strict requirements for the valid execution of a will, detailed in the Succession Law Reform Act, R.S.O. 1990, c. S.26. Section 4 of the SLRA states that a will must be signed by the testator "in the presence of two or more attesting witnesses". Courts have interpreted "presence" to mean physical presence.

Requiring witnesses to be in the same physical space as a testator is at odds with social distancing. With people confined to their homes, either alone or with close family members (who cannot be witnesses if they are beneficiaries under the will), the current rules are limiting the public's ability to safely make valid estate planning documents.

We think the time is right for the Government of Ontario to make amend Section 4 of the Succession Law Reform Act to allow remote witnessing via video conference. Specifically, we propose amending the wording of s. 4 to say that wills must be signed "in the physical or virtual presence" of two witnesses.

Video-conferencing technology has come a long way and can ensure that wills are meaningfully witnessed while also ensuring that we all do our part to limit the spread of COVID-19.