June 11, 2020
This article was authored by Oliver Ho, a former partner at JSS Barristers.
Two months ago, at the beginning of April, I wrote an article about how the Electronic Transactions Act permitted the application of electronic signatures on document such that they would bind that person in the same way as if that person had applied their signature by hand. Among other things, I explained that there were some categories of documents for which electronic signatures were expressly not permitted; at that time those categories included wills, enduring powers of attorney and personal directives.
While the Electronic Transactions Act is many years old, the public has generally not been quick to adopt electronic signatures; my personal experience has been that companies and governments often had internal policies requiring original signatures. It appears as if the COVID-19 pandemic has created circumstances where parties are more willing to accept electronic signatures.
While the Application of the Electronic Transactions Act permitted documents to be electronically signed, it did not change the requirement for a signature to be witnessed. The recently enacted Ministerial Order 39/2020 changes that; virtual witnessing of wills, enduring powers of attorney, and personal directives is now permitted. In other words, the signor and the witness (who must be a lawyer) need not be in the same room when the will, enduring power of attorney, or personal directive is executed, so long as the individuals are able to see, hear and communicate with each other in real time.
It should be noted however that the present permissibility of virtual witnessing is expressly intended to be temporary because Ministerial Order 39/2020 will lapse at the earliest of the termination of the Ministerial Order by the Minister, termination of the Ministerial Order by the Lieutenant Governor, or 60 days after the Order declaring a Public Health Emergency in Alberta has lapsed. For now however, physical distancing may more easily be maintained by this Ministerial Order.
Please note that JSS Barristers insights are provided for informational purposes only. They are not intended as legal advice or a legal opinion. Please contact authors or JSS Barristers if you would like to obtain legal advice on this or other legal issues.