Bill 245 Receives Royal Assent, Bringing Reform to Ontario Estate Law

  • May 12, 2021
  • Honor Lay, Miller Thomson LLP

Bill 245, Accelerating Access to Justice Act, 2021 (“Bill 245”) received Royal Assent on April 19, 2021, bringing significant reform to Ontario estate law.[1]

Virtual Witnessing of Wills and Powers of Attorney

In response to the outbreak of COVID-19, the Ontario government passed an emergency order, O. Reg 129/20, to temporarily permit the virtual witnessing of wills and powers of attorney so as to allow the public to execute those documents in a safe, socially-distanced manner. Bill 245’s amendments to the Succession Law Reform Act[2] (“SLRA”) and the Substitute Decisions Act, 1992[3] sanction virtual witnessing as a permanent option available to the public going forward, should one prefer to execute one’s documents through a virtual platform rather than in person.

The requirements for a valid virtual witnessing of a will or power of attorney are as follows:[4]

  • at least one of the witnesses must be a licensee (paralegal or lawyer) of the Law Society of Ontario;
  • the “audio-visual communication technology” used must enable the testator and witnesses to see, hear and communicate with one another in real time;
  • the testator and witnesses must sign the documents contemporaneously;
  • the counterpart copies of the will or power of attorney must be complete and identical (however, minor, non-substantive differences in format or layout between the copies are of no consequence); and
  • any further requirements specified by the regulations must be met.

These changes will come into force on May 20, 2021, when O.Reg 129/20 expires.

Note that the requirements of Bill 245 and those of the temporary O.Reg 129/20 are not identical. In particular, O.Reg. 129/20 seemingly allowed for wills and powers of attorney to be signed non-contemporaneously by the grantor/testator and witnesses, such that the same physical document could be circulated to the witnesses, who would sign it after the date of execution. Bill 245, in contrast, requires “contemporaneous” signing.

Finally, keep in mind that while the documents may be witnessed electronically, they may not be electronically signed. In other words, wet signatures are still required on wills and powers of attorney by all parties; e-signatures are not permitted.

Wills No Longer Revoked on Marriage

Bill 245 repeals the rule under the SLRA that marriage revokes a pre-existing will.[5] On a date to be proclaimed by the Lieutenant Governor, and not earlier than January 1, 2022, marriage will no longer revoke a pre-existing will.

Spousal Gifts and Appointments Revoked if Separated

Bill 245 treats separated spouses similarly to divorced spouses where the deceased had, in the will, designated the ex-spouse as a beneficiary, executor or trustee, or to hold general or special powers of appointment. Subject to a contrary intention in the will, the ex-spouse will be treated as having predeceased the testator, and the gift or appointment will be revoked.[6] Bill 245 introduces new subsection 17(4) of the SLRA, which defines when a spouse is considered to have been “separated” from the deceased. This amendment comes into force on a day to be proclaimed by the Lieutenant Governor on or after January 1, 2022.

Separated Spouses Not Treated Preferentially on Intestacy

Prior to Bill 245, a married spouse, even if separated, was entitled to a “preferential share”[7] of the estate of his or her spouse who died intestate (without a will). Bill 245 treats separated spouses similarly to divorced spouses, providing that separated spouses are no longer entitled to a preferential share of the estate. Bill 245 adds new section 43.1 of the SLRA, which likewise defines when a spouse is considered to have been “separated” from the deceased. This amendment comes into force on a day to be proclaimed by the Lieutenant Governor on or after January 1, 2022.

Courts Empowered to Validate Certain Imperfect Wills

Bill 245 introduces new section 21.1 of the SLRA, which gives the Ontario Superior Court of Justice the power to validate an improperly executed will where the court is satisfied the document sets out the testamentary intentions of the deceased. E-signed wills and other digital documents missing wet signatures are expressly excluded from the scope of this power. New section 21.1 takes effect on a day to be proclaimed by the Lieutenant Governor on or after January 1, 2022 and where the deceased died on or after that date.

Smarter and Stronger Justice Act

Note that Bill 245 follows on the heels of the Smarter and Stronger Justice Act, 2020, S.O. 2020, c.11, which also brought about estate law reform. That Act, which came into effect April 1, 2021, added a definition of a “Small Estate” to the Estates Act, and created an optional simplified probate procedure for such estates in Rule 74.1. (A “Small Estate” is different from an estate for which there is no probate tax payable. Currently, no estate administration tax is required for estates valued at less than $50,000.)

Individuals may wish to discuss their estate plans with an estate lawyer in view of the significant updates to the law in Ontario.

 

[1] Bill 245 and an Explanatory Note to the Bill are available online: https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-245

[2] R.S.O. 1990, c. S.26.

[3] S.O. 1992, c. 30.

[4] See amended section 4 of the SLRA.

[5] Subsection 15(a) and section 16 of the SLRA are repealed.

[6] See subsection 17(2) and new subsection 17(3) of the SLRA. The same rule applies to an ex-spouse where the marriage was terminated by annulment.

[7] The amount was recently increased from $200,000 to $350,000 and applies to the estates of persons who died on March 1, 2021 or later. See section 1 of O. Reg. 54/95: General under SLRA.

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