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Hot Topics in Notary Practice 2022
British Columbia Notaries Association (BCNA) hosted a successful and engaging Virtual Continuing Education Session on February 26, with a wide variety of presenters and topics. This full day of 5 sessions provided 10 Continuing Education Credits for the current reporting year of July 1, 2021, to June 30, 2022.
Dr. Margaret Hall
Ihad the pleasure of facilitating a panel presentation on Hot Topics in Notary Practice 2022 for the BC Notaries Association Conference held in February.
Hilde Deprez
Sally Houghton
Franca Muraca
The panel brought together four legal professionals with diverse practices and diverse perspectives, to discuss a range of issues. Our panelists were Hilde Deprez, a Notary practising in the Point Grey/ Kitsilano area of Vancouver; Sally Houghton, a Notary practising on Quadra Island; Franca Muraca, a Notary practising in Kamloops; and Trevor Todd, a lawyer practising primarily in the area of estate litigation in the Kerrisdale area of Vancouver. Our “hot topics” were primarily focused on Wills and incapacity planning, reflecting our panel participants and their areas of practice.
I’m a great believer in the idea that what you see depends on where you stand. When we bring together people standing in different places, we have an opportunity to see a more complete picture of the landscape.
Our panelists brought very different perspectives to our discussion, in terms of the communities where their practices are located and their length of time in practice. Hilde and Trevor were our highly experienced “old hands” on the panel; Sally and Franca had started their practices more recently. The perspectives they brought to our discussion were equally valuable and exchanging views brought new insights into our conversation.
As a litigator, Trevor sees how and why problems can arise after instruments are created and is therefore uniquely positioned to share his experiences on how to make it less likely that things will go wrong. Our Notary participants, in contrast, will be looking at the issues from the “other end”—the point at which legal instruments are created.
Our first topic was “navigating tough interpersonal situations” with clients—including whether our panellists have been asked to do something they were not comfortable doing—and what they had learned through those experiences. Our panellists described situations where family members were the ones applying pressure to try to persuade the Notary to prepare a document
in situations raising clear concerns about the client’s capability.
Even where the client appears capable, family members or other “helpers” may dominate the conversation to the extent that it’s difficult to know what the client actually wants. The panelists emphasised the importance of remembering your special role and responsibility as a Notary to safeguard the interests of clients, especially vulnerable clients—and not being hesitant to assert that role.
That includes making it clear to “helpers” who the client is and that you as the Notary are “in charge.” Staff members must also be empowered and supported to resist that kind pressure. Concerns about potential liability can arise in those situations, in addition to the Notary’s ethical responsibility to her or his client.
Our second topic was the extent to which contracts and agreements are part of our Notaries’ practice, the extent to which clients had expressed an interest in that area of service, and any general thoughts on the topic. Our panelists reported that beyond the real estate contract of purchase and sale, contracts and agreements were not a significant part of their practice, if at all.
In an area such as Kamloops, where real estate development was booming, the demand for real estate services both in the city and in surrounding areas was creating a high demand for Notary services generally, meaning there was little time to develop new skills and services. Hilde Deprez, our highly experienced Notary participant practising almost exclusively in the area of Will and incapacity planning, noted she did get asked frequently about co-ownership agreements between family members and “care agreements”— transfers of property interests in exchange for an agreement for care.
On that topic, concerns were expressed about contracts that had been created by persons who were not legal professionals, such as real estate agents, and who did not understand the nature of contracts or what they should include.
Our third topic was the extent to which electronic Wills—now enabled by legislation as meeting formalities’ requirements, and not defective Wills that need to be cured—had become a part of their practice, the extent of client interest, and whether the use of e-Wills raised any special concerns for them as practitioners. Our panelists had not experienced clients asking for e-Wills, suspecting clients may not be aware they are an option.
Sally Houghton, our Notary practising on Quadra Island, noted that her community members tended to be older persons who had come to the island from somewhere else, sometimes living a bit “off the grid,” and less technologically adept. Community members for whom the ability to make an e-Will would be beneficial—people with technological access but living in more remote communities on one of the neighbouring islands, for example—would need support to be “walked through” the process.
Hands-on experience or training in making e-Wills was identified as a necessary precursor to their use, and not just the fact that making them was now legally possible. Panelists also noted the power imbalance between older and younger generations in terms of knowledge about and familiarity with using technology, and the opportunities that could create for exploitation.
Our fourth topic, and the one that generated the most discussion, was the “simple Will” . . . the idea in the public imagination that a “simple Will” is the norm—unless a Will includes a trust, in which case it needs to be prepared by a lawyer, and that a Will should be quick and inexpensive for a Notary to prepare.
I began the discussion by asking our highly experienced Notary, with more than 2 decades of practising in the area of Wills and incapacity planning, if she could define a “simple Will”—to which she immediately replied that a Will would be “simple” only in rare circumstances—a single person with no spouse, no children, simple assets.
Will-making requires both time and expertise; rushing the process, with no opportunity for probing the Will-maker’s mind and capability or obtaining a complete list of assets, creates significant risks in terms of opportunities for future litigation—bad for both client and Will-drafter. Will-making is especially complex in communities with a high number of older, blended families.
Despite that, the concept of the “simple”—and cheap—Notary Will remains in the popular imagination, creating a disconnect between the service that people expect and are willing to pay for and the kind of service that Notaries should be providing—to protect the interests of the public as well as their own interests. The public needs to be informed that Notaries are Willdrafters, and not simply secretaries taking dictation from the Will-maker client.
