As you might recall, last April (of 2020) was the height of the first wave of the COVID-19 pandemic in Ontario. As part of our government’s efforts to keep Ontarians safe while still allowing access to justice, an emergency order was brought at that time to allow virtual witnessing of powers of attorney and wills. These changes were brought on a temporary basis, with the tock-down measures imposed in Ontario in mind.
With so much uncertainty, it seemed intuitive for the rules to be made more flexible, so everyone can have access to estate planning during an unprecedented time.
Now, we are more than a year into the global COVID-19 pandemic. The world, and Ontario, has learned to adapt to the realities of our new digital age. As with other parts of the law, the pandemic has been a catalyst of change.
These temporary rules have been well received. As a result, these changes, alongside four others, have been made permanent through the new Accelerating Access to Justice Act, 2021 which received Royal Asset on April 19, 2021.
The idea behind this new act is two-fold. First, our existing legal system should be updated to take advantage of existing modern technologies. Secondly, these updates will result in greater access to justice by simplifying existing processes. This in turn creates greater access to justice.
In addition to rules on virtual witnessing, estates modernization provisions which will amend our existing Succession Law Reform Act (“SLRA”) will be proclaimed in force on January 1, 2022.
There are four major changes worth highlighting, one of which is already in effect:
(1) First, section 16 of the SLRA will be repealed on January 1, 2022.Under it, marriages will no longer revoke prior wills.
This change is highly intuitive. The current rule of revoking an entire will where there is marriage, may not be beneficial to all familial situations. Divorce and re-marriage may change one relationship, between husband and wife, but this might not mean that one’s estate planning as to other beneficiaries or family members are impacted. This is especially the fact if it is the second marriage of both husband and wife, each with adult children whom they want to benefit.
(2) Secondly, section 17 of the SLRA will be amended on January 1, 2022. Present rules which only disinherits divorced spouses will be expanded to include separated spouses.
This change is also intuitive. The fact that only divorce can presently disinherit spouses, could work to create inequities. It is normal practice for a divorce order to take 30 days to finalize. If one spouse dies during that period, the default presumption is that the surviving spouse is entitled to inherit, even if they have been separated. This may not reflect the reality of what the deceased spouse would have wanted.
(3) Thirdly, after January 1, 2022, Ontario will join the likes of B.C. and Manitoba to become a province with substantial compliance. Up until that point, strict adherence to the requirements of will drafting are necessary. After this point, an Ontario Superior Court of Justice will be able to make orders validating wills (but not powers of attorney) which did not adhere to strict requirements.(See my prior blog on this topic on scenarios where this power is welcomed.)
(4) Lastly, the Smarter and Stronger Justice Act, 2020 S.O. 2020, c. 11, which has been in effect since April 1, 2021, will create new and more streamlined rules on “small estates”. These will be estates under a value of $150,000 (those above this amount will be treated as part of the existing regular process for probate). A simplified probate process will be created for these estates.
As a final word, these changes are greatly welcomed. Last summer, B.C. became the first Canadian province to allow for entirely electronic wills under section 31(1)(a) of its Wills, Estates and Succession Act. Although Ontario has not embraced change to that degree, with these new updates, our estates law framework is not far behind.