By Jennifer Katz – Wills and Estates Lawyer

On April 19, 2021, Bill 245 – Accelerating Access to Justice Act, 2021 received Royal Assent. Schedules 8 and 9 of Bill 245 have significant implications on estate planning and administration, which may impact parties’ rights and entitlements under a Will and on an intestacy.

Highlights:

Virtual Signing is now permanent

On April 7, 2020, the government passed an Emergency Order permitting the virtual signing of wills and powers of attorney (“POAs”), provided one of the witnesses is a lawyer or paralegal.

Bill 245 makes virtual signing permanent under the Succession Law Reform Act (“SLRA”) and the Substitute Decisions Act. Therefore, even once the pandemic is behind us, clients and lawyers can either sign in-person or virtually, by using “audio-visual communication technology” (such as Zoom) and executing and witnessing wills and POAs in counterpart. This change has the potential to improve access to justice for Ontarians requiring legal assistance with their estate planning, regardless of where they are located in the province.

Courts have greater authority to validate wills and other testamentary documents

Before Bill 245, if a will (or other testamentary document) was not entirely compliant with the formal requirements of the SLRA, the will would be invalid. As a result, some documents clearly intended by the deceased to function as a will or codicil have been considered invalid, thereby dishonouring the deceased’s wishes based on technicalities.

Bill 245 adds section 21.1 to the SLRA, thereby providing the Superior Court of Justice authority, on application, to make an order validating a document (not including POAs) that was not properly executed or made in accordance with the terms of the SLRA, if the Court is satisfied that the document sets out the testamentary intentions of the deceased or an intention of the deceased to revoke, alter, or revive a will.

Marriage no longer revokes an existing will

On a date to be proclaimed (sometime after January 1, 2022), entering a marriage will no longer revoke an existing will. This change may serve to protect vulnerable individuals entering predatory marriages.

Separated spouses are treated more like divorced spouses

Section 17 of the SLRA was amended to add provisions to treat separated spouses more like divorced spouses. On a date to be proclaimed (sometime after January 1, 2022), a gift for a spouse under a will will be revoked, if the spouses are deemed to be separated at the time of the testator’s death.

Separated spouses are no longer entitled to inherit on an intestacy

Before Bill 245, where an individual died intestate (without a will), separated spouses could claim entitlement to a “preferential share” of the deceased’s estate. Bill 245 amends the SLRA and the Family Law Act to prohibit spouses from inheriting from a deceased’s estate on an intestacy, if the deceased and the spouse are separated at the time of the deceased’s death.

In light of the above changes, should you wish to discuss or review your estate planning with us, contact Wills and Estates lawyer Jennifer Katz at jkatz@mindengross.com or any member of our Wills and Estates group who would be pleased to assist you. Visit our Group page at: https://www.mindengross.com/client-services/details/wills-and-estates-group.