Published: January 31, 2022
Last Updated: October 21, 2022
Introduction – Changes to Ontario Estate Law
Following the enactment of Bill 245, significant changes to the Ontario’s Succession Law Reform Act (SLRA) came into force on January 1, 2022.
Revocation of a will by marriage repealed
Section 16 of the SLRA provided for revocation of will upon marriage, except in certain circumstances. This section is repealed; thus, marriages occurring on or after January 1, 2022 – will no longer revoke existing wills. Couples who have been living together and decide to marry or couples who have otherwise made satisfactory estate planning arrangements no longer have to change their wills as soon as they get married. If you married prior to that date and did not update your will you still need to retain an experienced Canadian estate and tax planning lawyer to properly update your will.
Revocation, change in circumstances
Section 17 of the SLRA provided that if the marriage of the testator and the testator’s spouse is terminated or declared a nullity, the testator’s will shall be construed as if the former spouse had predeceased the testator. This section is amended, starting on January 1, 2022, and as a result specified instances of spousal separation will be treated as divorce.
Virtual witnessing of wills and powers of attorney
To deal with concerns relating to COVID-19, the province of Ontario declared a state of emergency on March 17, 2020. On April 7, 2020, the province of Ontario issued Order in Council filed as O. Reg. 129/20, that temporarily allowed for the virtual witnessing of Wills and Powers of Attorney. On April 19, 2021, with the passing of Bill 245, virtual witnessing of Wills and Powers of Attorney became a permanent option in Ontario.
Pro Tax Tips – Couples that got married before January 1, 2022, need to change their will or make a new one.
The revocation of existing wills does not apply to persons who are already married before January 1, 2022. Thus, anyone who got married before this date is deemed to not have an existing will, unless they made a new one after and in contemplation of marriage.
In the event that you think you may need professional estate and tax planning legal advice to help you change your existing will or draft a new one, it is highly recommended that you speak with an expert Canadian tax and estates lawyer.
Disclaimer:
"This article provides information of a general nature only. It is only current at the posting date. It is not updated and it may no longer be current. It does not provide legal advice nor can it or should it be relied upon. All tax situations are specific to their facts and will differ from the situations in the articles. If you have specific legal questions you should consult a lawyer."
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FAQs
A spouse is considered to be separated from the testator at the time of the testator’s death, if,
- before the testator’s death,
- they lived separate and apart as a result of the breakdown of their marriage for a period of three years, if the period immediately preceded the death,
- they entered into an agreement that is a valid separation agreement,
- a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or
- a family arbitration award was made under the Arbitration Act, 1991with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and
- at the time of the testator’s death, they were living separate and apart as a result of the breakdown of their marriage.
I named my spouse as a trustee and a beneficiary on my will. We have been separated but not divorced. How does the separation affect my will?
Beginning January 1, 2022, a separated spouse of a deceased person will no longer have property rights. A separated spouse − who has been designated as a beneficiary in a will – will no longer be entitled to the benefits under the will. If your separated spouse was named as an estate trustee, a separation will revoke the appointment. If your separated spouse was named as an executor in your will, a separation will revoke the appointment and an alternative executor will be appointed. A separation will be treated the same as a divorce, provided that the spouses have lived apart for three years and obtained a valid separation agreement or court order. You should speak to an experienced Canadian tax and estates lawyer to update your will to change your former spouse as beneficiary, executor and trustee.
Yes, Bill 245’s amendments to the Succession Law Reform Act and the Substitute Decisions Act, sanction virtual witnessing as an option available to the public, should one prefer to execute one’s documents through a virtual platform rather than in person.
The requirements are as follows:
- At least one of the witnesses must be a licensee (paralegal or lawyer) of the Law Society of Ontario;
- The “audio-visual communication technology” used must enable the testator and witnesses to see, hear and communicate with one another in real time;
- The testator and witnesses must sign the documents contemporaneously;
- The counterpart copies of the will or power of attorney must be complete and identical (however, minor, non-substantive differences in format or layout between the copies are of no consequence); and
- Any further requirements specified by the regulations must be met.
No, while the documents may be witnessed electronically, they may not be electronically signed. In other words, wet signatures are still required on wills and powers of attorney by all parties; e-signatures are not permitted.
