New order raises chances that lawyers will witness a will—whether or not they prepared it
Lawyers should be careful participating in an emergency measure to allow virtual execution of wills and powers of attorney — even if they weren’t the lawyer who prepared the will.
That’s new guidance from LawPRO’s “Avoid a Claim” blog, which notes that virtual will executions require that one of the two witnesses be a Law Society licensee.
“It may be tempting to act as a witness for no or little money, especially if you find your other practice commitments have declined as a result of social distancing,” said the insurer, which protects lawyers accused of professional errors.
“And if you did not prepare the will or power(s) of attorney (POA), you might think you do not have any obligation to make sure they cannot be contested later. The reality is that if there are disappointed family members or beneficiaries who think there was something wrong with these documents, you can safely bet that any resulting claim will include your name.”
Even as a witness, a Law Society of Ontario-licensed lawyer or paralegal faces an expectation from the public that they have “taken steps to ensure the will or power of attorney was properly prepared and executed,” said LawPRO’s blog post.
The insurer particularly warned lawyers who “parachute in” to witness a will or POA but don’t normally practise in the wills and estates area, noting that even unfounded allegations of errors could increase insurance premiums for five years.
LawPRO said lawyers should be sure they do not witness a virtual signature once the emergency order is lifted, and advised lawyers to take notes, record the video of the signing, and send a “detailed letter” confirming the scope of their retainer.
“The requirement for a Law Society licensee to be involved in virtual wills means you are more likely to be asked to witness for as long as this temporary order is in place,” said the insurer.
“[P]lease consider the risks of just renting out your signature and take proactive steps to reduce your exposure to a claim.”