As of January 1st, 2022, Bill 245 has made amendments to the Succession Law Reform Act in Ontario. Some of these amendments will drastically change the way legal work is done forever.
Firstly, marriage will no longer automatically revoke a will, as a will made before marriage will continue to be valid. In the past, the will would have been revoked or invalid upon marriage. This means that spouses should consider updating their will when getting married to avoid future issues. This change will benefit vulnerable persons from dying intestate shall they fail to create a new will after marriage. It is common for a spouse to be a victim of a bad-faith marriage, so this amendment aims to protect the deceased’s interests.
Second, courts now have the power to save invalid wills. For wills that are technically invalid because, for example, only one witness signed it and not two, the courts will no longer simply declare it invalid. The courts may find ‘testamentary intention’ to declare a will valid. This process is already common practice in other provinces and is known as ‘substantial compliance’. This legislative change is a response to the number of wills that default because of technicalities that are easily avoidable.
Next, separated couples relinquish their property rights. The new legislation stipulates that even if a couple is not legally divorced, an ex-spouse will no longer have property rights. A separation in this context has the same effect as a divorce. Of course, this may not apply if an ex-spouse can rely on a separation agreement to claim part of the estate. A couple is considered separated if they’ve lived apart for at least three years and have a valid separation agreement. This is something that couples need to be aware of so they can ensure that their interests are protected and updated.
Finally, virtual witnessing has become a permanent fixture. The option of virtual witnessing makes it easier to have your documents witnessed without needing to gather in person. This change allows for you and your two witnesses to get on a video call to witness the signing of wills and power of attorney documents. With virtual witnessing, at least one witness must be a licensed lawyer or paralegal. Keep in mind this does not mean you can sign your will digitally. You and your witnesses still need to print your documents and sign them in wet ink. You can either mail around the original copy of your will or you can each sign them in counterpart.
Bill 245 is a major piece of legislation that will change the way estate planning is done in Ontario. While the transition will be smooth for some, for others it will pose unique challenges. Get in touch with us, as we can guide you through the process to make estate planning as easy as possible. Contact us for your complimentary consultation today.