COVID-19 has had an impact across the legal sector including for Estate practitioners. The recent amendments to the Succession Law Reform Act, R.S.O. 1990, CHAPTER S.26 (“SLRA”), most of which came into effect on January 1, 2022, are an indication of some flexibility being adopted with respect to the execution of Wills and the formalities of due execution of Wills in Ontario. In addition, there has been clarity for separated spouses and their entitlements in an intestacy.
Below is a brief outline of the amendments to the SLRA that have come into effect as of January 1, 2022 (with the exception of parts of section 4 which was effective as of April 7, 2020).
Section 4: Execution
Changes to section 4 of the SLRA were primarily driven due to the restrictions imposed by the pandemic for social distancing and limiting face to face meetings. This required legislators to reconsider execution requirements for testamentary documents. As a result, section 4 of the SLRA was amended to include the use of audio-visual communication technology for the witnessing of the execution of a Will by a testator if one of the witnesses is a licensee within the meaning of the Law Society Act at the time of the making, acknowledgement or subscribing.
Previously, Wills were required to be executed in the presence of two witnesses, which involved physical proximity of both the testator and witnesses in order to execute all testamentary documents, however, this requirement has been amended for practitioners who are a licensee within the meaning of the Law Society Act. The balance of the amendments in this section permit the Will to be signed in counterpart and for minor, non-substantive differences in format or layout between copies when using audio-visual communication technology to execute a Will.
The amendments to section 4 of the SLRA demonstrate a similar intent with section 21.1 of the SLRA to relax the previous rigidity and rules of strict compliance rules by permitting some degree of flexibility for the testator to execute and practitioners to witness a Will such as to allow individuals to make their Will in the current environment.
With these new amendments, practitioners can expect the execution of testamentary documents to become more convenient for clients, reduce legal costs, and overall increase access to legal services for individuals without geographical restrictions.
Sections 15(a) & 16: Revocation generally and Revocation by marriage – Repealed
Before these sections were repealed, section 15 (a) operated to automatically revoke a Will upon entering a marriage unless subject to section 16 there was a declaration that the Will is made in contemplation of the marriage, or the spouse of the testator elects to take under the Will or the Will is made in exercise of a power of appointment of property which would not pass to the heir, executor, or administrator of the testator or to the beneficiaries of the estate if the testator died intestate. With these changes, marriage will no longer revoke a Will, and, for the purpose of clarity, any Will made before marriage will continue to be valid.
Many people who don’t retain legal assistance with their Will are unaware that their Will could have been revoked upon marriage, and, in the event of their death, intestacy rules would apply and subsequently result in unintended consequences with respect to their Estate.
This change is certainly welcome in this province and has already been adopted in other Western provinces, including British Columbia, Alberta and Saskatchewan. The repeal of these sections will go a long way in halting the consequences of predatory marriage, where the predator stands to gain quite substantially when the victim dies intestate under these sections.
Section 17: Revocation Change in Circumstances
Section 17 addresses changes in circumstances, as separated spouses may decide to never formally divorce or take the necessary steps to make changes to their Wills following separation. Given that divorced spouses are not entitled to any portion of their former spouse’s estate, until these new amendments came into effect, this same rule had not been extended to include separated spouses as well. With the introduction of subsection (3) which specifically references separated spouses, this subsection will mirror subsection (2) by restrict any rights, benefits or appointments that the separated spouses would retain upon the death of their spouse.
By extending the rule to disentitle divorced spouses to include separated spouses, subsection (4) provides further criteria for separated spouses to mean the following: that the separated spouses have lived separate and apart for at least 3 years; entered into a separation agreement; a court has made an order to ensure their obligations and rights are settled following their separation; or a family arbitration award was made; and, at the time of the testator’s death, the spouses had been living separate apart as a result of a breakdown in their marriage.
Amending and introducing these new subsections provide clarity to separated spouses, as failure to extend the same rule to separated spouses could result in unintended consequences, as surviving spouses could benefit in a manner that the deceased had not intended.
Section 21.1: Court-ordered validity
The introduction of section 21.1 will certainly be a welcome development and also complements the recent changes made under section 4 of the SLRA. This section gives the court the flexibility to validate a document as a Will that does not comply with the strict formalities of proper execution. Thus far, a few common elements shared by courts in other provinces and jurisdictions indicate that a document will be admitted to probate when the following considerations were found: (1) it must be a document; (2) it must purport to record the testamentary wishes of the testator; and (3) it must also intend to operate as a Will.
Courts in other jurisdictions have found a testamentary document to be a valid Will, despite certain deficiencies, if the Court finds evidence that the document(s) in question clearly demonstrated the testator’s intention to either create a new Will, or alter, revoke or revive a previous Will, or any other document other than a Will, which embodies the deceased’s intentions.
In other Canadian provinces and territories which already have similar provisions, the court have considered factors such as the deceased’s handwriting, witness signatures, revocation of previous Wills, funeral arrangements, specific bequests and the title of the document to make their determinations.[1]
Finally, under section 21.1(2), although Ontario has not permitted electronic Wills to date, it will be interesting to see this possible development, given that British Columbia has recently introduced similar legislation.
Section 43.1: Non-application of intestacy rules to separated spouses
Section 43.1 of the SLRA was introduced to provide clarification as to the application of intestacy laws to separated spouses. Section 43.1 uses the same criteria as section 17(4) to define a spouse who is considered to be separated from the testator at the time of the testator’s death and the non-application of the intestacy rules to separated spouses.
With the introduction of section 43.1 of the SLRA, section 6(21) under the Family Law Act was also introduced to complement the amendment. This definition could result in complications for separated spouses who are living separate and apart given that they will have to rely on other evidence to support their relationship.
The SLRA continues to only refer to legally married couples, which has now expanded to include both divorced and separated spouses, however, it does not include common-law spouses. Therefore, common-law spouses will continue to be excluded under intestacy rules with no automatic entitlement to their partner’s estate when their partner dies intestate, despite the number of years they have cohabited together.
Although, other provinces such as British Columbia and Alberta have recognized and provided protection for common-law partners under similar legislation, Ontario has not yet done so. This continues to require common law spouses to make a claim for dependant’s relief under Part V of the SLRA as their only option in an intestacy for support from their common law spouse’s estate.
Conclusion
The pandemic has had a progressive impact for Estate practitioners and the courts. It has given legislators the nudge they needed to revisit important and outdated legislation. The amendments have provided a metaphorical bridge by enhancing access to justice to many. Estate practitioners should be aware of these various and vital changes moving forward so that they can continue to assist their clients as best they can with respect to their Estate Planning needs, while navigating this new and rapidly changing reality in which we live in.
[1] See Estate of Young 2015 BCSC 182 at para 36; reference made to Kuszak v. Smoley, [1986] M.J. No. 670 (Q.B.) and Martineau v. Myers Estate, [1993] M.J. No. 339 (Q.B.).\
At Mills & Mills LLP, our lawyers regularly help clients with a wide range of legal matters including business law, family law, real estate law, estate law, employment law, health law, and tax law. For over 130 years, we have earned a reputation amongst our peers and clients for quality of service and breadth of knowledge. Contact us online or at (416) 863-0125.
Written by Reshma Kishnani, Senior Litigation Associate at Mills & Mills LLP practising in employment law and estate litigation, and Cassandra Fafalios, Student-at-Law at Mills & Mills LLP for the OBA Institute Series 2022: Serving the Family presented on February 2, 2022.
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