Author: Daniela Fonseca, Associate at KMB Law
A number of changes to Ontario’s inheritance law have recently been implemented in an effort to modernize the practice of estate law. These changes came about as a result of the government enacting the Accelerating Access to Justice Act 2021 and makes changes to the Succession Law Reform Act (“SLRA”), Ontario’s inheritance law.
The virtual execution of wills and powers of attorney, which had been introduced originally as a temporary measure in response to the Covid-19 pandemic and the corresponding stay-at-home orders, have now become a permanent fixture. Section 4(3) of the SLRA now permanently allows that signings of Wills and Powers of Attorney taking place virtually through audio-visual communication technology in the presence of a licensed lawyer or paralegal will satisfy the requirements for the proper execution of a will.
Marriage no longer revokes a Will
Section 15(a) and 16 of the SLRA was repealed as of January 1, 2022. This means that a marriage no longer revokes an existing will. The purpose of this amendment is to protect vulnerable persons from “predatory marriages”. Prior to this change, a marriage after the execution of a will would have automatically revoked that will and the new spouse would have benefited under the estate of their deceased spouse as if there was no will. This change means that marriage will no longer have any legal effect on the will and that non-married individuals will not need to make their will in contemplation of marriage. This change, while a positive step towards modernizing estate law in Ontario, could also present other challenges therefore it is still important that when an individual marries or remarries after making a will, they consult an estate planning lawyer and update their will if they do wish to provide for that new spouse.
As of January 1, 2022 the SLRA has been amended so that separated spouses are treated the same as divorced spouses and will no longer benefit from the estate of a deceased. Section 17, which states that divorced spouses who have been appointed as executors under a will and/or are named as beneficiaries under a will are to be treated as if they had predeceased the testator and those particular sections of the will are revoked. Subsection 17(3) has been added so that this treatment expands to spouses separated at the time of the testator’s death.
For situations where there is no will, what is known as an intestacy, the new Section 43 of the SLRA provides that a separated spouse will not benefit from the estate. Prior to this change, any legally married spouse, whether separated or non-separated, would benefit from the preferential share, which for deaths prior to March 1, 2021 was the first $200,000 of the estate and for deaths after March 1, 2021 the first $350,000 of the estate plus either the balance of the estate or an equal share if there are children. Section 43 no longer extends this entitlement to separated spouses and they will not be entitled to this preferential share or any other portion of the estate.
Validity of Testamentary Documents
As of January 1, 2022, Ontario will shift from a strict compliance approach to a substantial compliance approach in validating a will. This means that if the courts are satisfied with the testamentary intentions set out by the document, they will be able to order this document as a valid and effective will. For example it is possible that a will that was drafted but not signed may, on an application be admitted as the last valid will and testament of the deceased.
This is a very brief summary of some of the major changes to Ontario’s estate law, however every family situation is unique and requires a more nuanced discussion with a specialist in estate planning. For any questions about these changes to the law or to discuss your estate plan in more detail, the Business and Succession Group at KMB LLP is happy to help.