Four changes to Ontario’s estate planning laws advisors and their clients need to consider.
KIMBERLY WHALEY AND BRYAN GILMARTIN
SPECIAL TO THE GLOBE AND MAIL
PUBLISHED FEBRUARY 9, 2022
Several important legal changes came into effect in 2022 for estate planning in Ontario that have an impact on how wills are produced and considered – in most cases, especially for people who are married, separated, and in common-law relationships.
Advisors and their clients should be aware of these new rules and seek proper estate planning advice to ensure that testamentary documents are compliant with the reforms and deliver their intended effect when executed.
Here’s a closer look at changes to the Succession Law Reform Act and the Substitute Decisions Act, which came into being when the Accelerating Access to Justice Act gained royal assent.
1. Electronic signatures for wills and powers of attorney
The virtual signing of wills and power of attorney (POA) documents is now a permanent option.
This rule was first introduced as a temporary measure during the province’s COVID-19 emergency order in 2020 and applies to all wills made on or after April 7, 2020.
As of this year, wills may be formally signed and witnessed virtually provided that:
- At least one person who acts as a witness is a licensed lawyer or paralegal;
- The testator’s and witnesses’ signatures are made at the same time;
- The electronic method of communication used allows participants to see, hear and communicate with one another in real-time.
Notably, the amendments don’t permit electronic signatures on wills. Therefore, signing by hand is still a requirement for a will to be valid.
A similar amendment now also allows virtual witnessing for POA documents given that they may be executed in the presence of witnesses through the use of audio-video communication technology if at least one person is a licensed lawyer or paralegal and the signatures are made at the same time.
2. Marriage no longer revokes an existing will
Before Jan. 1, marriage revoked an existing will, but that’s now no longer the case.
Existing wills will be considered for people married in 2022 and thereafter, according to the new reforms.
An important consideration is that this rule does not apply retroactively. If the marriage occurred before January, the previous provisions apply and the marriage would have revoked any will that was not made specifically in contemplation of the marriage.
3. Separated spouses lose entitlement and appointments
Before the new laws came into effect, separated but not divorced spouses remained entitled to share in an estate if they were named in a will or on an intestacy before January.
Now, spouses who have been separated but not yet divorced for at least three years before a death that occurs after Dec. 31, 2021, or have a separation agreement, are treated the same as divorced spouses.
That means a separated spouse within these criteria who is named as a beneficiary and/or estate trustee in a will is not entitled to any such benefit under the will or entitled to act as estate trustee.
However, that change doesn’t affect beneficiary designations on life insurance policies and registered plans.
The intestacy provisions will also no longer apply to separated spouses. That means spousal entitlements will no longer apply if a testator had no will and was separated from his or her spouse at the time of death.
4. Courts can validate wills that aren’t executed properly
The Ontario Superior Court of Justice is now authorized to make an order validating a document or writing that was not executed properly in complete compliance with the formal requirements of wills.
That may occur if the court is satisfied the document or writing sets out the testamentary intentions of the deceased person or the deceased’s intention to revoke, alter or revive his or her will.
That’s a significant change as the court had no control previously in determining whether a document said to be a “will” satisfied the strict legislative requirements constituting a valid will.
Several provinces have already enacted similar legislation and the Ontario courts will likely look to their decisions when considering the application of this new power.
Meanwhile, it’s important to note that the new rules don’t include documents that are executed electronically. That means this provision doesn’t allow the court to declare a document or writing valid if it bears an electronic signature.
Kimberly Whaley is founding partner and Bryan Gilmartin is an associate lawyer at WEL Partners, a trusts and estates litigation boutique law firm in Toronto.