On February 22, 2021, the Attorney General for Ontario tabled Bill 245, Accelerating Access to Justice Act, 2021, which has now received Second Reading. If passed into legislation, it will significantly reform various areas of law, including in the area of estates. The proposed amendments to Ontario’s Succession Law Reform Act (“SLRA”) and certain other pieces of legislation will result in a number of notable changes, summarized as follows:
- The remote witnessing of wills by means of audio-visual communication technology[1] will become a permanent option for the formal execution of wills made on and after April 7, 2020, provided that at least one witness is a licensed lawyer or paralegal.[2] A complementary amendment will be made to Ontario’s Substitute Decisions Act to permanently permit virtual witnessing of powers of attorney.[3] It will, however, still not be possible in Ontario to have electronic wills. Notably, the proposed amendments include a new power to make regulations in relation to the requirements for virtual witnessing. This is a welcome development, since it will allow the Minister to further clarify the process for virtual witnessing.
- As a result of the proposed repeal of subsection 15(a) and section 16 of the SLRA, marriage will no longer revoke a Will.
- If at the testator’s death the testator was separated from his or her spouse (the proposed amendments include a definition of what it means to be separated), any gifts to the separated spouse in the will of the testator will be revoked and the will of the testator will be construed as if the separated spouse had predeceased the testator (subject to a contrary intention in the will).[4] This extends the existing provisions, which currently only apply when a marriage is terminated by divorce or annulment.
- If a person dies without a will (i.e. intestate) and is at the time of his or her death separated from his or her spouse, the spousal entitlements provided for under the SLRA will not apply (the proposed amendments include a definition of what it means to be separated).[5] A complementary amendment is proposed to Ontario’s Family Law Act.[6]
- The Superior Court of Justice will be authorized to, on application, make an order validating a document or writing that was not properly executed in complete compliance with the formal requirements for the execution of wills if the Court is satisfied that the document or writing sets out the testamentary intentions of the deceased or the deceased’s intention to revoke, alter or revive their will.[7] Electronic documents are expressly excluded from the scope of this power. This is sometimes referred to as a “substantial compliance power” or a “validating power” and has already been enacted in other Canadian jurisdictions.
- If there is no guardian of property appointed for a minor child, subsection 51(1) of Ontario’s Children’s Law Reform Act permits money or property up to $10,000 to be paid to (a) the child, if the child has a legal obligation to support another person; (b) a parent with whom the child resides; or (c) the person having lawful custody of the child, in certain circumstances. The proposed amendments remove the default statutory maximum amount of $10,000 and provide that the permissible amount will be set by regulation. The Attorney General proposes to fix the maximum at $35,000.
Bill 245 reflects the government’s commitment to modernize estates law in Ontario and includes a number of welcome updates. Miller Thomson’s Private Client Services team will be keeping apprised of these updates and will provide further updates as the legislation progresses.
[1] Participants must be able to see, hear and communicate with one another in real time.
[2] Proposed new section 4 of the SLRA.
[3] Proposed new section 3.1 of the Substitute Decisions Act.
[4] Proposed amendment to section 17 of the SLRA.
[5] Proposed new section 43.1 of the SLRA.
[6] Proposed amendment to section 6 of the Family Law Act.
[7] Proposed new section 21.1 of the SLRA.
