The province’s estate law reform hit a major milestone last month with the passing of Bill 245. The updated legislation better reflects life in the 2020s. Effective January 2022, virtual will witnessing becomes a permanent option, getting married will no longer revoke a will, and the courts will be able to save wills that are considered invalid due to a technicality.

Virtual Signings of Will and Powers of Attorney (POA) – In an effort to prevent fraud, public policy has always required that wills and POAs be executed in the physical presence of two witnesses. Because of the lockdown measures due to Covid-19, the Ontario government passed legislation to temporarily permit virtual signings. Bill 245 now makes this option permanent. Suzana Popovic-Montag, estate lawyer and managing partner with Hull & Hull LPP in Toronto commented “Making virtual witnessing permanent, Ontarians will have improved access to legal assistance in their estate planning, regardless of where in the province they may be located.”

Marriage will no Longer Revoke a Will – Currently in Ontario if you get married, your Will, will generally be revoked. The primary reason for this rule, is that by getting married, a review one’s estate plan should be a necessity. While this is still a valid point, financial predators have easily been able to take advantage of this rule. Where a predatory bride or groom marries an elderly or vulnerable person, the person’s will becomes invalid and is subsequently revoked. If the person does not make a new will, the individual will be deemed to have died intestate, resulting in the financial predator as the married spouse standing to gain significantly from the person’s estate. In response to predatory marriages being on the rise, Bill 245 abolishes the rule that marriage revokes a will. This will hopefully prevent financial predators from taking advantage of elderly and vulnerable persons.

Substantial Compliance regime – If a will is deemed invalid, one’s estate is distributed according to the province’s intestacy rules, rather than how the deceased may have intended. Bill 245 now gives the courts power to save wills that would otherwise have been found invalid due to technical errors. After this provision comes into force all provinces except Newfoundland and Labrador will operate under the substantial compliance regime.

Separated and Divorced Spouses – Currently, divorce revokes any gifts or appointment of estate trustee made in favour of a former spouse under any will that was made prior to the divorce. Bill 245 extends that rule to include separated spouses, as most separating spouses do not want their ex-spouse to benefit upon their death. Furthermore, after the change, a surviving spouse is considered to be separated if the couple was living apart due to a marriage breakdown at the time of death for three years or ‘immediately preceding the death’ had a valid separation agreement, had a court-ordered settlement agreement, or a family arbitration award had been made. The ‘immediately preceding the death’ was added; so the legislation did not inadvertently disinherit separated spouses if the couple had reconciled prior to death.

While Covid-19 certainly has its drawbacks, these changes remind us how certain events spur on change. These changes are significant, it would be prudent to review your current will and estate plan to ensure your intentions are not defeated by these new rules.

Have a great week,

Tracey

Sources: Original article It’s official: marriage no longer revokes a will in Ontario, by Rudy Mezzetta, Melissa Shin poste on Investment Executive 05-03-2021, Original blog In Wills and Estate Law by Sarah Macaluso posted on Mann Lawyers.com website on 03-11-2021