Ontario changes to wills and estates legislation granted Royal Assent

Ontario changes to wills and estates legislation granted Royal Assent

Ontario Bill 245, The Accelerated Access to Justice Act, 2021 received royal assent on April 19, 2021, although certain provisions will not come into force until proclaimed, the Bill provides that the proclamation date cannot be earlier than January 1, 2022. This article outlines the relevant changes.

Marriage will no longer revoke a will in Ontario

Ontario’s Succession Law Reform Act provides that marriage revokes a will unless specific actions are taken. Bill 245 repeals this rule in its entirety – i.e. marriage will no longer revoke a will in Ontario. This change will come into effect when proclaimed, and the proclamation date will not be earlier than January 1, 2022.

Separated spouses won’t inherit in some cases

The Succession Law Reform Act states that if a testator writes a will and then gets divorced, the will is to be interpreted as if the divorced spouse had predeceased the testator.?Similarly, a divorced spouse cannot inherit a spouse share under intestate succession rules.?Prior to Bill 245, a separated (but not divorced) spouse could still inherit under a will or intestate succession rules.

Separated spouses will no longer be entitled to inherit from a deceased individual’s estate (whether testate or intestate) where they were separated for a three year period immediately preceding the individual’s death, or if the spouses were separated subject to a separation agreement, court order or family arbitration order. This change will come into effect when proclaimed, and the proclamation date will not be earlier than January 1, 2022.

Common-law partners are not considered “spouses” for these purposes, and if the testator wrote a will in favour of a common-law partner and then they separated, the common-law partner can still inherit under the will.?Common-law partners have never had the right to a “spouse” share on intestate succession, and this has not changed.

Spouse preferential share on intestate succession increased

In conjunction with Bill 245, the Regulations under the Succession Law Reform Act were amended so that for the estates of persons who die on or after March 1, 2021, a spouse’s preferential share of an intestate estate has been increased from $200,000 to $350,000.?

Remote witnessing permitted for wills and powers of attorney

Bill 245 makes permanent the provisions for remote witnessing of wills and powers of attorney that had been permitted under emergency COVID-19 measures.?These changes are in force now (and retroactively to April 7, 2020). At least one of the witnesses must be a licensee within the meaning of the Law Society Act.?Regulations may be issued on a later date with more requirements.

Substantial compliance of wills

Where a will has not been properly executed, the courts may order that the document or writing is valid and fully effective as if it had been properly executed. Electronic wills remain invalid and will not be recognized.

This change will come into effect when proclaimed, and the proclamation date will not be earlier than January 1, 2022.

Limits on children’s property are increased

As indicated in the news article, “Ontario minor account withdrawal limit increased from $10,000 to $35,000”, the withdrawal limit on minor accounts in Ontario has already been increased from $10,000 to $35,000.