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Significant Progress Made by Attorney General in Estate Law Changes

Signing of document virtually with legal symbols over the image

On February 16th, Ontario’s Attorney General, Doug Downey, moved for the first reading of Bill 245, the Accelerated Access to Justice Act, 2021[1].  Amongst other legislative amendments, the Bill proposes changes to the Substitute Decisions Act, 1992 and to the Succession Law Reform Act.

With respect to the Substitute Decisions Act, 1992, the proposed amendments will permit remote witnessing of Powers of Attorney on a permanent basis.  The amendments will apply to any Powers of Attorney signed on or after April 7th, 2020.  Remote witnessing by means of audiovisual communication technology will also be permitted, on a permanent basis, for Wills made on or after April 7th, 2020, pursuant to the amendment of section 4 of the Succession Law Reform Act, which governs the execution of Wills.  Remote witnessing had been permitted by regulations made under the Emergency Management and Civil Protection Act, as a temporary measure to respond to the COVID-19 pandemic.

Although remote witnessing does carry significant risks, if done properly, it will allow individuals to sign Wills and Powers of Attorney from the safety and security of their home.  As discussed in previous blogs, one of the safeguards that has been imposed is the requirement that one of the witnesses be a licensee under the Law Society Act, meaning either a lawyer or a paralegal.  Other safeguards, specifically relating to the procedural requirements, have also been imposed by the legislation.

The Bill also repealed section 15(a) and 16 of the Succession Law Reform Act, the result of which is that a Will is not automatically revoked upon marriage by the testator.  This means that a Will signed prior to the testator’s marriage will continue to be valid.

The legislative amendments also provide that if a testator and his married spouse were separated as of the testator’s death, the surviving separated spouse will not be entitled to various property rights under the Succession Law Reform Act[2].  Similarly, on an intestacy, new section 43.1 eliminates property rights if the spouses were separated as of the date of death[3].

The most significant change proposed in the Bill is the granting of the power to validate Wills that have not been properly executed under Succession Law Reform Act[4].  Ontario currently has a “strict compliance” regime, which means that a Will that fails to meet the requirements of the Act is invalid, with no ability for the courts to validate the Will.  The proposed amendments would move Ontario to a “substantial compliance” regime, which has been adopted in various provinces and other jurisdictions.

If the amendments are approved, a judge would be able to validate an improperly executed Will, provided the judge is satisfied that the document reflects the testamentary intentions of the deceased.  This is a much-welcomed change in the eyes of many estate practitioners, who acknowledge that mistakes in execution can be made, despite careful efforts to prevent them.

Notably, the proposed amendments did not incorporate provision for electronic wills, which is a highly controversial topic amongst estate practitioners.  As well, the possibility of extending property rights on death to common-law spouses was not addressed by the Bill.  Lastly, there was no amendment to the value of the preferential share, to which spouses are entitled on an intestacy.  It appears that these topics require further legal analysis before any legislative amendments are brought forward.

Bill 245 will proceed to the second reading, at which time the substance of the Bill will be debated by MPPs.  If necessary, the Bill will be referred to committee for review and amendment, followed by third reading, and eventually Royal Assent.

The alacrity with which the Attorney General has responded to concerns arising from the COVID-19 pandemic, as well as from stakeholder input into the current legislation governing estates, reflects the general desire to bring estates law into the twenty-first century, in a safe and regulated manner.  The outcome at second reading and at the committee level will be of much interest to all estate practitioners in Ontario.


[1] A copy of Bill 245 can be viewed at: https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-245.

[2] The Bill also addresses separation prior to death, provided the separation is a result of the breakdown of the marriage for at least three years before date of death.

[3] This also applies to separations prior to death, provided the separation is a result of the breakdown of the marriage for at least three years before date of death.

[4] This proposed amendment does not extend to the execution of Powers of Attorney under the Substitute Decisions Act, 1992.


 

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