Major Changes Being Considered in the Estates Area

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There are currently substantial changes being considered to Ontario’s estate law. We feel it is important to be aware of these updates as estate legislation has been evolving quickly over the past year.

The Accelerating Access to Justice Act, 2021 or Bill 245suggests major changes to the Succession Law Reform Act (“SLRA”) and is currently in the third reading stage at the Legislative Assembly of Ontario. Here is a summary of the core changes the bill proposes:

  1. Making Virtual Witnessing, Execution and Counterpart Execution documents permanent.

    This would make permanent the temporary changes introduced at the beginning of the pandemic that allow for virtual options to be used in lieu of in person meetings.

2. Eliminating revocation by marriage

Currently as a matter of principle wills are automatically revoked upon marriage. This would be repealed should the proposed changes come into effect. Essentially this would mean under the proposed rules that if you already have a will and then get married that previous will would still be valid.

3. Treating separated spouses more similar to divorced spouses

Under Section 17(2) of the SLRA when a divorce occurs all any assets or appointment given to the former spouse in the will are revoked automatically. This would include any gifts or bequests and appointments of executor or power of attorney,

Up until now this did it not apply to separated spouses. The Bill makes this section also applicable to spouses separated at the time of the testator’s death. The Bill defines what is a “separated spouse” and also eliminates a separated spouse’s entitlements on intestacy.

4. Moving from strict compliance to substantial compliance

For the time being Ontario operates under strict compliance. This means that if a will is not strictly witnessed and executed under the specific terms laid out in the SLRA then it will be null and void, even if the intentions of the deceased were obvious.

Under the proposed substantial compliance changes if a will clearly sets out the intentions of the deceased then the court may on application, order that the document is a valid and fully effective

In effect that means that a will which might not be formally valid may however be considered a valid will. This would apply only if the deceased died on or after the day after the proposed amendments come into force.

These are substantial changes – it shows once again the importance of staying on top of estate planning.

Please feel free to contact us for any further information.

Disclaimer: the information provided is for general informational purposes only. All information is provided in good faith, however we make no representation or warranty of any kind, express or implied, regarding the accuracy, adequacy, validity, reliability, availability or completeness of any information provided.

Please consult a lawyer and/or an accountant for any legal and/or tax advice.

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