Bill 245: Five Things to Consider in Your Estate Planning
Bill 245, known as the Accelerating Access to Justice Act, received Royal Assent on April 19, 2021. Schedule 9 of Bill 245 made various amendments to the Succession Law Reform Act (SLRA), which impacts individual rights and entitlements under a Will and on an intestacy. Most of the changes came into effect on January 1, 2022 and are briefly outlined below.
Remote witnessing is now permanent
Bill 245 makes remote witnessing a permanent alternative for Ontarians. Remote witnessing allows in-person or remote signing via audio-visual communication technology. Keep in mind that one witness must be a licensed lawyer or paralegal.
Remote witnessing does notmean that you can digitally sign your Will. You and your witnesses will still need to print your documents and sign them in wet ink. You can either mail the original copy of your Will between the parties or sign them in counterpart. Signing your Will in counterpart means printing out three separate copies of the Will. All three signed copies are then stored together to comprise the legal Will.
Marriage no longer revokes an existing will
Bill 245 repealed section 16 of the SLRA. This means that entering into a marriage will no longer revoke an existing Will. Previously in Ontario, a Will was automatically revoked by marriage except in specified circumstances. This created opportunities for predatory marriages.
For example, in Banton v. Banton, a 31-year-old woman befriended and subsequently married an 88-year-old man with limited mental capacity. After the marriage, the man did not create a new Will. Following his death, the Court found that a significant amount of the man’s estate now belonged to the 31-year-old woman. This negatively impacted the financial survivability of the surviving children. Bill 245 works to protect vulnerable individuals who have entered into predatory marriages.
Separated spouses are no longer entitled to inherit on an intestacy
Bill 245 added new subsections to the SLRA that restrict any claims by separated spouses against each other’s estate, provided the following specific requirements are met:
- the couple must have lived separate and apart due to a marriage breakdown for three (3) years or more immediately preceding the testator’s (i.e., person who has made a Will) death; or
- the couple must have dealt with their rights on the breakdown of the marriage by way of a separation agreement, court order, or family arbitration award; and
- the couple were living separate and apart due to a marriage breakdown at the time of the testator’s death.
If these specific requirements are met, the former couple qualifies as “separated” under the SLRA and a separated spouse, who has been designated as an estate trustee or a beneficiary in a Will, will no longer be entitled to the benefits under the Will.
Courts can save invalid wills
Bill 245 also added section 21.1 to the SLRA, which gives the Superior Court of Justice the authority to, on application, make an order validating a Will that was not properly executed or made under the SLRA. For example, if a Will was only signed by one witness, the courts will not necessarily deem the Will to be invalid. Rather, section 21.1 allows the courts to find “testamentary intention” and declare the Will valid.
This amendment helps reduce the number of Wills that default to intestacy rules set out in the SLRA due to technical errors. That said, it is still in your best interest to ensure your Will meets all legal requirements.
Separation eliminates property rights
Lastly, Bill 245 added section 43.1 to the SLRA, which eliminates property rights on death to separated spouses who are not divorced. Previously, section 17(2) of the SLRA provided that partners were required to obtain a legal divorce before their Will was revoked. A complementary amendment was made to section 6 of the Family Law Act.
So what do these changes mean? It may be time to review the details of your estate plan to ensure that your estate and loved ones are protected when the time comes.
Still have questions about how Bill 245 affects your estate planning? Contact Malorie Mosher, Associate Lawyer at Lockyer + Hein LLP to learn more: firstname.lastname@example.org / 289.748.7567