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The Remote Witnessing and Commissioning Act (Various Acts Amended)

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S.M. 2020, c. 25

Bill 42, 3rd Session, 42nd Legislature

The Remote Witnessing and Commissioning Act (Various Acts Amended)

Explanatory Note

This note is a reader's aid and is not part of the law.

This Act enables the use of videoconferencing or similar technology when commissioning an oath or affirmation or when witnessing a will, power of attorney, land titles document or health care directive.

The following Acts are amended:

  • The Manitoba Evidence Act
  • The Health Care Directives Act
  • The Homesteads Act
  • The Powers of Attorney Act
  • The Real Property Act
  • The Wills Act

Consequential amendments are made to two other Acts.

(Assented to December 3, 2020)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

THE MANITOBA EVIDENCE ACT

C.C.S.M. c. E150 amended

1(1)

The Manitoba Evidence Act is amended by this section.

1(2)

The following is added after section 64:

Remote commissioning

64.1

Despite section 64, a person authorized under the regulations may administer an oath, affirmation or statutory declaration without being in the presence of the deponent or declarant if

(a) the oath, affirmation or statutory declaration is administered in the manner specified in the regulations; and

(b) in the case of an affidavit or statutory declaration, it contains or appends any wording required under the regulations, including any prescribed form of jurat.

1(3)

The following is added after section 68 as part of Division V:

Regulations

68.0.1

For the purpose of section 64.1, the Lieutenant Governor in Council may make regulations

(a) authorizing a person or class of persons set out in subsection 62(1) or 63(1) to administer an oath, affirmation or statutory declaration without being in the presence of the deponent or declarant;

(b) specifying the procedures to be followed for administering an oath, affirmation or statutory declaration;

(c) if the person administering an oath, affirmation or statutory declaration and the deponent or declarant are in different jurisdictions, deeming the oath, affirmation or statutory declaration to be administered in a particular jurisdiction;

(d) for an affidavit or a statutory declaration, prescribing wording to be included in or appended to it, including a form of jurat.

THE HEALTH CARE DIRECTIVES ACT

C.C.S.M. c. H27 amended

2(1)

The Health Care Directives Act is amended by this section.

2(2)

The following is added after section 8:

Remote witnessing

8.1(1)

Despite subclauses 8(2)(b)(ii) and (iii), a person authorized under the regulations may, in the manner specified in the regulations,

(a) witness the acknowledgment, by the maker, of a signature on a directive signed by a person other than the maker without being in the presence of the maker; and

(b) sign a directive as a witness without being in the presence of the maker.

Additional wording required

8.1(2)

A directive witnessed in accordance with subsection (1) must contain or append any wording required under the regulations.

2(3)

Clause 9(1)(b) is amended by adding "or section 8.1" after "subsection 8(2)".

2(4)

The following is added after section 27:

Regulations

27.1

For the purpose of section 8.1, the Lieutenant Governor in Council may make regulations

(a) authorizing a person or class of persons to

(i) witness the acknowledgment, by the maker, of a signature on a directive signed by a person other than the maker without being in the presence of the maker, and

(ii) sign a directive as a witness without being in the presence of the maker;

(b) specifying the procedures to be followed for witnessing the acknowledgment, by the maker, of a signature on a directive;

(c) if the maker and the witness are in different jurisdictions, deeming a directive to be made in a particular jurisdiction;

(d) prescribing wording required to be included in or appended to a directive.

THE HOMESTEADS ACT

C.C.S.M. c. H80 amended

3(1)

The Homesteads Act is amended by this section.

3(2)

The following is added after section 25:

Remote witnessing

25.1(1)

A person authorized under the regulations may witness the signing of a document set out in subsection (2), or administer an oath or affirmation in respect of the document, without being in the presence of the person signing the document if

(a) the signing of the document is witnessed, or the oath or affirmation is administered, in the manner specified in the regulations; and

(b) the document contains or appends any wording required under the regulations.

Documents that may be witnessed remotely

25.1(2)

This section applies to the following documents:

(a) an election under section 8;

(b) a consent to a disposition or change of homestead under section 9;

(c) a release of homestead rights under section 11;

(d) a consent to terminate a release of homestead rights under section 13;

(e) a homestead notice under section 19;

(f) a consent to a disposition after the death of the owner under section 22;

(g) an acknowledgment made by an attorney, committee or substitute decision maker under subsection 23(5).

3(3)

Section 29 is replaced with the following:

Regulations

29

The Lieutenant Governor in Council may make regulations

(a) prescribing forms for the purpose of this Act;

(b) for the purpose of section 25.1 (remote witnessing),

(i) authorizing a person or class of persons authorized to take affidavits or statutory declarations under The Manitoba Evidence Act to witness the signing of a document set out in subsection 25.1(2), or to administer an oath or affirmation in respect of the document, without being in the presence of the person signing the document,

(ii) specifying the procedures to be followed for witnessing the signing of a document or administering an oath or affirmation in respect of a document,

(iii) if the person signing a document and the witness or person administering an oath or affirmation in respect of the document are in different jurisdictions, deeming the document to be signed, sworn or affirmed in a particular jurisdiction, and

(iv) prescribing wording to be included in or appended to a document.

THE POWERS OF ATTORNEY ACT

C.C.S.M. c. P97 amended

4(1)

The Powers of Attorney Act is amended by this section.

4(2)

The following is added after section 10:

Remote witnessing

10.1(1)

Despite subsections 10(1) and (2) but subject to subsection (2), a person authorized under the regulations may, in the manner specified in the regulations,

(a) witness a donor signing or acknowledging a signature on an enduring power of attorney without being in the presence of the donor; and

(b) sign an enduring power of attorney as a witness without being in the presence of the donor.

Additional wording required

10.1(2)

An enduring power of attorney witnessed in accordance with subsection (1) must contain or append any wording required under the regulations.

4(3)

The following is added after section 25:

Regulations

25.1

For the purpose of section 10.1, the Lieutenant Governor in Council may make regulations

(a) authorizing a person or class of persons set out in subsection 11(1) to

(i) witness a donor signing or acknowledging a signature on an enduring power of attorney without being in the presence of the donor, and

(ii) sign an enduring power of attorney as a witness without being in the presence of the donor;

(b) specifying the procedures to be followed for witnessing the signing or acknowledgment of a signature on an enduring power of attorney, and for signing the enduring power of attorney as a witness;

(c) if the person signing or acknowledging an enduring power of attorney and the witness are in different jurisdictions, deeming the enduring power of attorney to be signed or acknowledged in a particular jurisdiction;

(d) prescribing wording to be included in or appended to an enduring power of attorney.

THE REAL PROPERTY ACT

C.C.S.M. c. R30 amended

5(1)

The Real Property Act is amended by this section.

5(2)

Subsection 72(1) is amended by striking out "to 72.9" and substituting "to 72.10".

5(3)

The following is added after section 72.9:

Remote Witnessing of Instruments

Remote witnessing

72.10

Despite sections 72.5 to 72.9, a person authorized under the regulations may witness the execution of an instrument under any of those sections without being in the presence of the person executing the instrument if

(a) the execution of the instrument is witnessed in the manner specified in the regulations; and

(b) the instrument contains or appends any wording required under the regulations.

5(4)

Section 195 is replaced with the following:

Regulations

195

Subject to the approval of the Lieutenant Governor in Council, the Registrar-General may make regulations

(a) for the purpose of subsections 13(7) and 13.1(7), specifying the powers or duties of a district registrar or the Examiner of Surveys that must not be delegated except with the approval of the Registrar-General;

(b) specifying financial institutions for the purpose of the definition "financial institution" in subsection 72(2);

(c) designating public bodies for the purpose of subsection 72.4(2);

(d) designating classes of persons as witnesses for the purpose of subsection 72.5(4);

(e) for the purpose of section 72.10,

(i) authorizing a person or class of persons set out in any of sections 72.5 to 72.9 to witness the execution of an instrument under the respective section without being in the presence of the person executing the instrument,

(ii) specifying the procedures to be followed for witnessing the execution of an instrument,

(iii) if the person executing an instrument and the witness are in different jurisdictions, deeming the instrument to be executed in a particular jurisdiction, and

(iv) prescribing wording to be contained in or appended to an instrument;

(f) prescribing the form and content of a statutory declaration as to the ownership of farm land for the purpose of subsection 85(3);

(g) prescribing the maximum amount chargeable for preparing and registering a discharge of an interest under section 105.1;

(h) designating classes of persons as eligible grantees for the purpose of clause 111(1)(d);

(i) prescribing fees payable under this Act or The Registry Act and prescribing fees payable under any other Act for services provided by a district registrar or a land titles office;

(j) respecting any other matters the Registrar-General considers necessary or advisable to carry out the purposes of this Act.

THE WILLS ACT

C.C.S.M. c. W150 amended

6(1)

The Wills Act is amended by this section.

6(2)

Section 4 is amended, in the part before clause (a), by striking out "sections 5 and 6" and substituting "sections 4.1, 5 and 6".

6(3)

The following is added after section 4:

Remote witnessing

4.1(1)

Subject to subsection (2), a person authorized under the regulations may, in the manner specified in the regulations,

(a) witness a testator signing or acknowledging a signature on a will without being in the presence of the testator or another witness; and

(b) attest and subscribe a will without being in the presence of the testator or another witness.

Additional wording required

4.1(2)

A will witnessed in accordance with subsection (1) must contain or append any wording required under the regulations.

6(4)

Subsection 7(3) is amended by adding "4.1," after "section 4,".

6(5)

The following is added after section 38 as part of Part I:

Regulations

38.1

For the purpose of section 4.1, the Lieutenant Governor in Council may make regulations

(a) authorizing a person or class of persons to

(i) witness a testator signing or acknowledging a signature on a will without being in the presence of the testator or another witness, and

(ii) attest and subscribe a will without being in the presence of the testator or another witness;

(b) specifying the procedures to be followed for witnessing the execution of a will and for attesting and subscribing the will;

(c) if the testator and a witness are in different jurisdictions, deeming a will to be made in a particular jurisdiction;

(d) prescribing wording to be included in or appended to a will.

CONSEQUENTIAL AMENDMENTS AND COMING INTO FORCE

C.C.S.M. c. M240 amended

7

Subsection 42(3) of The Municipal Board Act is amended by striking out "clause 195(b)" and substituting "clause 195(i)".

C.C.S.M. c. S235 amended

8

Section 66 of The Surface Rights Act is amended by striking out "clause 195(b)" and substituting "clause 195(i)".

Coming into force

9

This Act comes into force on a day to be fixed by proclamation.