Today’s blog is being brought to you by our guest bloggers, David Rosenbaum and Anna Chen

On February 16, 2021, Bill 245 Accelerating Access to Justice Act, 2021 (“Bill 245”) was introduced by the Ontario legislature.  Bill 245 passed Second Reading on March 2, 2021.[1]

If passed, Schedules 8 and 9 of Bill 245 will make significant changes to the Substitute Decisions Act, 1992 (the “SDA”) and the Succession Law Reform Act (the “SLRA”).

Proposed Changes to the SDA

Schedule 8 would amend the SDA to provide for the remote witnessing of powers of attorney through the means of audio-visual communication technology, for powers of attorney entered into on or after April 7, 2020.  “Audio-visual communication technology” is defined as, “any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.”

To utilize the remote witnessing process, at least one person who is acting as a witness must be a licensee within the meaning of the Law Society Act at the time of the execution.  A “licensee” is defined under section 1(1) of the Law Society Act as, (a) “a person licensed to practice law in Ontario as a barrister and solicitor,” or (b) “a person licensed to provide legal services in Ontario.”[2]

In addition, Schedule 8 would also amend sections 83 and 90 of the SDA, respecting the Public Guardian and Trustee’s entitlement to have access to records relating to a person who is alleged to be incapable in the context of an investigation required under the SDA.

Proposed Changes to the SLRA

Schedule 9 would make several amendments to the SLRA.  First, it would provide for the remote witnessing of wills through the means of audio-visual communication technology, with similar rules as set out under Schedule 8.

Second, Schedule 9 incorporates considerations for separation between married spouses:

• Schedule 9 would amend section 17 of the SLRA, which currently provides that if the marriage of the testator and the testator’s spouse is terminated by a judgment absolute of divorce or is declared a nullity, the provisions in the testator’s will affecting the former spouse are revoked and the testator’s will shall be construed as if the former spouse had predeceased the testator. The current section 17 applies only when the marriage is: (1) terminated by a judgment absolute of divorce; or (2) is declared a nullity.  The proposed amendments would expand the applicability of section 17 to circumstances where spouses are separated at the time of the testator’s death.
• Schedule 9 would add a new section 43.1, which would provide that spousal entitlements under Part II of the SLRA (Intestate Succession) do not apply if the deceased person and the spouse are separated at the time of the person’s death. The proposed section 43.1 sets out the circumstances under which a spouse would be considered to be separated from the deceased person at the time of the person’s death.

Third, Schedule 9 would repeal the long-standing rule in Ontario that a marriage revokes a will.  Specifically, sections 15(a) and 16 of the SLRA would be repealed.  Testators and drafting solicitors will need to be mindful of this significant rule change when preparing wills under the new regime.

Lastly, and most significantly, the Schedule would give the Superior Court of Justice authority to make an order validating a document or writing that was not properly executed or made under the SLRA.  Specifically, the Schedule would add the following provisions:

21.1(1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the  deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the  deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.

(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000

This would be a substantial departure from the current regime, which does not give courts the discretion to dispense with the formal requirements imposed by the SLRA.  Several other provinces have already enacted similar legislative provisions, including British Columbia[3] and Saskatchewan,[4] and the judicial authorities in those provinces may assist the Ontario courts when deciding a section 21.1 application.

One thing to highlight is the caveat in section 21.1(2).  The authority provided to the court under section 21.1(1) will not allow the court to declare a document or writing valid if that document or writing bears an electronic signature.[5]

About David Rosenbaum

David Rosenbaum is a partner at Fasken in the Litigation and Dispute Resolution, Wills, Trusts & Estate Litigation and Health practice groups, amongst others.  David has acted for both beneficiaries and estate trustees with disputes regarding wills, inheritances and trusts, including will disputes, contested passings of accounts, dependant relief claims, trustee removal applications and breach of trust actions.  In addition to his extensive experience in litigating estate and trust disputes, David also has experience in health law, commercial litigation and insurance litigation.

About Anna Chen

Anna Chen is an associate in the Litigation and Dispute Resolution, Wills, Trusts & Estate Litigation, and Private Client Services practice groups at Fasken.  Anna is called to the Bars of British Columbia and Ontario.  She assists clients in both provinces when disputes arise involving wills, trusts, inheritances, estate administration and family property division.  Anna helps to resolve issues through negotiation, mediation and, when necessary, litigation.

[1]      https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-245

[2]      See section 1(1) of the Law Society Act, R.S.O. 1990, c. L. 8: https://www.ontario.ca/laws/statute/90l08

[3]      See section 58 of the British Columbia Wills, Estates and Succession Act, S.B.C. 2009, c. 13: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/09013_01#division_d2e5854

[4]      See section 37 of the Saskatchewan Wills Act, 1996, S.S. 1996, c. W-14.1: https://www.canlii.org/en/sk/laws/stat/ss-1996-c-w-14.1/latest/ss-1996-c-w-14.1.html

[5]      See section 31(1) of the Electronic Commerce Act, 2000, S.O. 2000, c. 17: https://www.ontario.ca/laws/statute/00e17#BK38