Changes to Ontario Estate Law

A spouse is considered to be separated from the testator at the time of the testator’s death, if,

1. 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

1. 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.