Family, Estate and Succession laws are changing with the Royal Assent of Bill 245, Accelerating Access to Justice Act, 2021 on April 19, 2021.

These changes are made to modernize the legal system in Ontario. The passing of Bill 245 has significant implications to estate planning for Ontario residents. For individuals who may be separated, divorced, or widowed, it may be a suitable time to revisit your estate plans and potentially update your Wills and Powers of Attorney (“POA”) in light of these recent legislative changes.

Enclosed are key highlights of these changes.

Marriage No Longer Revokes an Existing Will

Prior to Bill 245, in general, the act of marriage could revoke a previously executed Will. Bill 245 repeals existing provisions in the Succession Law Reform Act (“SLRA”) that automatically revoke a Will upon marriage.

It is hoped that this change may protect vulnerable individuals who may have entered “predatory marriages” – where the act of marriage would have revoked their previous Will. Thus, potentially leaving one’s estate to the new partner and effectively disinheriting previous beneficiaries.

This provision will come into force sometime after January 1, 2022.

Virtual Will Signing is Now Permanent

Temporary emergency measures were introduced in April 2020 to permit the virtual signing of Wills and POAs – provided one witness is a lawyer.

Bill 245 makes virtual witnessing and signing of Wills and POAs permanent under the SLRA and the Substitute Decisions Act.

This change positively allows for Ontarians to choose whether to execute their Wills and POAs in-person, or to execute in counterpart virtually (e.g., via Zoom, GoToMeeting, etc.). Specifically, Bill 245 provides for remote witnessing “through the means of audio-visual communication technology” for Wills and POAs entered into on or after April 7, 2020.

Ontario is Now a “Substantive Compliance” Province

Before Bill 245, Ontario operated as a “Strict Compliant” province. This term means that a Will must be compliant with all the required legal formalities to be considered valid. For example, a Will generally has to be signed by the testator (i.e., Will-maker) in the presence of at least two witnesses, who also need to sign the Will.

A deceased may have made their intentions fairly clear. However, due to the Strict Compliance regime, if the Will were deemed invalid (e.g., a witness missed a signature), the estate could be distributed according to the Intestacy rules of the province (i.e., deemed to die without a Will) – which would likely have differed from what the deceased intended.

Bill 245 adds a new section 21.1 to the SLRA which effectively provides the Courts with greater authority to “save” Wills (not including POAs) “not properly executed” – which may otherwise have been considered invalid due to a legal error or technicality.

This new provision will come into force no earlier than January 1, 2022.

Changes to the Treatment of Separated Spouses

Bill 245 eliminates property rights on death when spouses have separated but have not formally divorced — whether the deceased dies with or without a Will. This change is generally intended to help Ontarians who have failed to update their Wills after becoming separated.

Specifically, the separated spouse will be treated like a divorced spouse – in that a gift for the separated spouse under the deceased’s Will will be revoked, if the spouses are considered “separated” at the time of the testator’s death.

Moreover, pre-Bill 245, a separated spouse could claim a “preferential share” from the deceased’s estate – where the deceased died without a Will. Bill 245 amends the SLRA and the Family Law Act to prevent separated spouses from inheriting – if the deceased and the spouse are separated at the time of the testator’s death.

Specifically, under Bill 245, a surviving “spouse is considered to be separated” if the couple was living “separate and apart” due to a marriage breakdown at the time of the death for three years or more immediately preceding the death; had a “valid separation agreement”; had a court-ordered settlement agreement; or a “family arbitration award” had been made.

These changes will similarly come into force no earlier than January 1, 2022.

Takeaways

It is important to revisit your Estate Plans on a regular basis to ensure that your Wills and POAs continue to be current and aligned with your estate objectives.

Given these significant changes, now may be an opportune time to consider your estate planning. Please feel free to contact a member of The Rosedale Family Office if you would like to discuss these changes and how they may impact your legacy goals.