What should I do regarding Wills, Powers of Attorney, and/or Personal Directives?
There was no change in the law to expressly permit remote signatures and witnessing. The practices on remote execution which were developed during the early days of COVID-19, were born of, and founded on, necessity. There was no way to tell if a court would accept such a will.
The guidance we provided at that time suggested re-executing any such wills in-person when able. It remains unclear whether the courts will accept a remotely executed will. There is far less necessity for remote execution and witnessing, especially as we enter phase 5.
If you have not done so already, we strongly recommend that you arrange for the re-execution of any wills where the testator and two witnesses were not all in the same room together at the same time and able to witness in the traditional way.
For clarity, we recommend against using remote execution and in favour of the testator and witnesses being in the same place at the same time.
You may use appropriate health protections like glass or plastic screens, masks, sanitizer, etc. that still allow everyone to see the others sign and for you to be able to determine there is no undue influence or capacity issue.
Can I get Client Identification and Verification through remote means?
Verification of clients is not required for all matters.
Because there is no obligation to meet with a client face-to-face to identify the client, keep in mind the distinction between identifying and verifying the identity of a client:
Identifying the client means obtaining certain basic information about your client and any third party directing, instructing or who has the authority to direct or instruct your client, such as a name and address. You must obtain this information whenever you are retained to provide legal services to a client unless an exemption applies. This step can be done over the phone or by video conference. There is no requirement that it be completed face-to-face.
Verifying the identity of a client means looking at an original identifying document from an independent source to ensure that your clients and any third parties are who they say they are. You are only required to verify the identity of your client and such third parties if you are involved in a funds transfer activity, that is, you engage in or instruct with respect to the payment, receipt or transfer of funds, and an exception does not apply.
Verification of client identity occurs face-to-face unless verification is provided by an agent pursuant to an agency agreement between you and the agent.
Managing the Risk of Face-to-Face Verification via Video Conference:
If you use video conference to conduct face-to-face verification of client identity instead of being in the physical presence of the client or using an agent, consider the following factors to help manage some of the risk:
- If there are red flags associated with fraud or money laundering, attempt to mitigate risk, and determine if you should proceed
- Stay alert to the fact that persons may attempt to use situations like COVID-19 as an opportunity to commit fraud or other illegal acts and to be particularly vigilant for red flags of fraud or other illegal activities.
- Where virtual methods are chosen, you must be particularly alert to these red flags to ensure you are not assisting in or being reckless in respect of any illegal activity.
- Document any red flags, what measures you have taken to mitigate that risk, and you decision on how you proceeded or did not proceed.
- Using another method of verifying identity that may reduce the risk of fraud or money laundering such as the dual process or credit file methods.
- Verify early, not when under pressure to close a transaction. Leave time in case you need to get an agent. Do not feel pressured to accept something.
- Documents are hard to read if held up to a camera. If you must use remote verification, watch the client scan or photograph their ID, then send it to you immediately. Compare what you can see on video.
Can I continue to take an affidavit or statutory declaration remotely?
What truly matters is what an authority who must rely on the document will determine at a later date (a court, the Registrar General, etc.) Although neither the Notaries and Commissioners Act and the Evidence Act specifically provide for, nor preclude, the virtual taking of oaths, the lawyer who does so is taking a risk that it will not be accepted. If circumstances require you to take an affidavit remotely, the jurat of an affidavit is an important record and should accurately reflect the circumstances of the swearing/affirming. The jurat should indicate that the oath was taken remotely, the date, the method (by videoconference), and the location of you and the affiant. Also, contact the court or the other authority receiving the affidavit to explain why the affidavit has been taken remotely and get directions about the next steps if needed.
Do I need all original “wet” signatures for filing scanned documents with Property Online?
On September 13, 2021, the Registrar General issued an update to her March 18, 2020, directive and will continue to accept documents executed remotely (i.e., one “wet” signature).
This updated directive is “to allow for consultation on legislative or regulatory changes which may be required to make the interpretation permanent. The directive will continue until such time as it is expressly revoked by this office (which will coincide with any necessary regulatory or legislative changes). For greater clarity, this directive will continue in effect beyond the period in which the Province of Nova Scotia is asking Nova Scotians to practice social distancing.”
Has the Registry of Joint Stocks updated their protocols?
At the beginning of the pandemic, the Registry of Joint Stock Companies permitted scanned copies of originally signed documents to be submitted via email in situations where it ordinarily required original documents affixed with original signatures for RJSC filing. Since that time, RJSC has launched an online system, RJSC Connect, which allows signed scanned documents to be uploaded directly into the system.