Bill 245, which received royal assent last month, includes changes within the acts governing wills, powers of attorney and intestacy.
Bill 245 allows for permanent virtual witnessing of wills and powers of attorney. Virtual witnessing has been allowed on a temporary basis in the Province of Ontario after the onset of the COVID-19 pandemic last spring. Although the legislation does not specify an effective date, it will apply retroactively to any will or power of attorney that was signed in accordance with the emergency order of April 7, 2020.
One significant change in Bill 245 allows the courts to have the power to save wills that may otherwise be found invalid for technical errors. When a will is found to be invalid, estate property is distributed according to the intestacy rules in the province, rather than as the deceased may have intended as set out in their will. After this provision comes into force, all provinces, except Newfoundland and Labrador, will operate under a “substantial compliance” regime.
The “substantial compliance” regime allows for courts to make an order validating a document that was not properly executed where the court is satisfied that the document sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased. An example under the “substantial compliance” regime is the missing signature of one witness. If the court is satisfied that there is convincing evidence that both witnesses were present, and the failure to sign as a witness was an oversight, the court may validate the will.
This Bill also addresses issues surrounding marriage and divorce in relation to wills. Bill 245 repeals the provision in the Succession Law Reform Act (SLRA) that automatically revokes a will upon marriage and eliminates property rights upon death when spouses have separated but not divorced, whether the deceased dies with or without a will. These provisions will come into force no later than January 1, 2022.
Under this change, the surviving spouse is considered to be separated if: the couple was living separate and apart due to the breakdown of the marriage at the time of death for three years or more immediately preceding the death; had a valid separation agreement; had a court-ordered settlement agreement; or a family arbitration award had been made.
The wording “immediately preceding the death” excludes spouses who separated and reconciled prior to death. This change is meant to protect people who have not changed their will after separation. However, the blanket changes to estate law may affect a large amount of people who are separated but intend on their spouse to inherit a portion of their estate.
Ontarians are encouraged to review their will plans so their intentions are not defeated by the new legislation.
-Heather Dixon and John Dooley