Can Legal Documents Be Witnessed and Signed Virtually in Alberta?

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Posted by heritagelaw on Jan 21, 2021 in Blog, Notary, Real Estate Law

With all of the changes that have happened in our country and province during the COVID-19 outbreak, various legislations and conditions have been passed to accommodate conducting legal business in the virtual realm.

To give you an idea of what the current legislations are, here is a guideline of the legal proceedings you can accomplish via virtual signing, witnessing, and electronic signatures:

Virtual Signing and Witnessing

Alberta’s Initial Response to the COVID-19 Pandemic

In response to the COVID-19 pandemic, Alberta introduced temporary legislation on May 15, 2020, that allowed virtual signing and witnesses of wills as well as estate planning documents such as enduring power of attorney and personal directives.

These new guidelines were not accepted by the Queen’s bench when it came to wills signed in counterpart.

Signing in counterpart means that duplicate contracts or deeds are printed separately to provide a copy for each involved party. Typically, one copy of the document is signed by all involved parties.

As a result, the virtual execution of estate planning documents was time-consuming and challenging, as lawyers had to physically send the same document to each involved party for signature and virtual witnessing.

Yet, during this period of time, digital witnessing and signatures were accepted by the courts in Alberta.

Recent Changes to the Legislation in Alberta

Recently, the Alberta government has introduced updated legislation that allows individuals to continue employing remote signing of estate planning documents as well as have those documents signed in counterpart.

This legislation is applicable retroactively to May 15, 2020, and extends the period of virtual signing and witnessing until August 15, 2022.

This amendment act (the COVID-19 Pandemic Response Statutes Amendment Act, 2020, or CPRSAA) also allows the government of Alberta to allow additional periods in which the rules for virtual execution of estate planning documents will apply.

What Are the Requirements for the Virtual Execution of Estate Planning Documents?

Apart from allowing for the signing of estate planning documents in counterpart, the rules for the virtual execution of these documents have not changed since May’s temporary legislation:

  • The involved individuals must be connected by an electronic method of communication in which they can see, hear, and communicate with each other in real-time.
  • A lawyer must provide legal advice to the maker/donor/testator of the document as well as services related to the making, signing, and witnessing of the estate planning document.

Our expert lawyers at Heritage Law are experienced and knowledgeable in estate planning and the necessary documentation.

If you want these documents handled virtually, contact us for more information.

Can Commissioning and Notarizing Be Done Virtually by a Lawyer?

On March 25, 2020, the Alberta Court of the Queen’s Bench released guidelines for commissioning affidavits virtually during the pandemic:

  • The affidavit must include an explanation that it was commissioned via video technology.
  • The affiant’s identity must be confirmed by the commissioner by reviewing and taking screenshots of the front and back of the affiant’s government issued photo identification.
  • The commissioner and the affiant must have individual copies of the entire affidavit, with each page reviewed and initialed.
  • The oath or affirmation must be administered by the commissioner and the affiant signature must be witnessed by the commissioner.
  • The entire signed affidavit must be sent by the affiant to the commissioner electronically.
  • The commissioner must review the document against their own document to ensure that it is identical.
  • Both copies must be filed together with a certificate explaining why the digital process was necessary.

This process is more time-consuming. However, given the pandemic and safety measures individuals are taking to reduce the spread of COVID-19, these guidelines were created to alleviate potential spread.

Electronic Signatures

Are Electronic Signatures Legal and Enforceable?

According to the Electronic Transaction Act (ETA), electronic records and transactions are considered as legal and enforceable as paper-based transactions.

For this reason, electronic agreements such as real estate purchases and mortgage representation with electronic signatures are also considered legally binding.

Also, in Alberta and every Canadian province and territory, e-signatures on employment contracts are permissible.

However, there are requirements in order for digital contracts to be considered valid:

  • They must be organized and written in the same (or highly similar) way as a paper-based contract or form.
  • They must be accessible for future reference.
  • They must be capable of being retained (i.e. printed).

Overall, electronic signatures are just as binding as written signatures as long as that signature identifies both the individual who is signing and the purpose of the signatures as it relates to the signed document.

How Are Electronic Signatures Enforced?

Under Canadian law, e-signatures are accepted as evidence that a contract has been agreed to. 

However, in the province of Alberta, the following cannot be accepted as legally binding with an electronic signature:

  • Wills
  • Trusts
  • Power of attorney
  • Personal directives
  • Land transfers

In order to ensure that a document signed virtually is legally binding, it is recommended that consent from the signing party be obtained either implicitly or explicitly – although this is not mandatory.

Having authorization and consent helps to demonstrate the intention of all parties involved and protect them from accusations of fraud.

However, since these steps are not mandatory, it is in the best interest of both parties to have the agreement reviewed in order to ensure the agreement is fair and valid.

If you are facing a situation in which an e-signature is deemed acceptable, it would be in your best interest to consult with a lawyer to make sure you are legally binding yourself to a proper agreement.

Final Thoughts

There are very few legal proceedings, when it comes to documentation, that you cannot do virtually during the current pandemic. There is always risk involved when relying on video conferencing and e-signatures in relation to important legal documents.

Let Heritage Law walk you through addressing legal documentation virtually – get in touch with us today!