What’s New in Ontario Estate Law as of January 2022

Take a moment to read my summary of changes in estate law.

This is in the next release of Compensation & Duties of Estate Trustees, Guardians & Attorneys.

Will Challenges

The Accelerating Access to Justice Act, 2021, with numerous schedules, implemented changes in stages to the Succession Law Reform Act. Schedule 9 of this new act was passed on April 15, 2021.

Changes were made in 2021 to the Succession Law Reform Act. These changes now permanently permit remote signing of wills. This law applies to wills made on or after April 7, 2020 using audio-visual communication technology.

Spousal preferential shares in intestate estates were increased for deaths on or after March 1, 2021. This increase was from $200,000 to $350,000 by regulation under section 45 of the Succession Law Reform Act.

Other changes to the Succession Law Reform Act, effective January 1, 2022, are discussed below:

A. Change to Substantial Compliance

Courts can, by new section 21.1 (1), accept testamentary instruments that substantially comply with legislation. This breaks from Ontario’s previous strict compliance approach to validate testamentary instruments.

B. Marriage No Longer Automatically Revokes Wills

Provisions that revoked wills automatically by marriage (with exceptions) under former sections 15 (a) and 16 are repealed. Section 17 of the Act specifies what happens to parts of wills when marriages are terminated.

C. New Intestacy Rules

Intestate succession rules in Part II are amended by new section 43.1. Married persons who are separated, as the term is defined, do not inherit on an intestacy. This change is reflected in the Family Law Act under section 6 for elections.

Amendments to the Family Law Act are effective January 1, 2022. Section 6 is amended. Separated spouses are now defined terms in an intestacy. They have a zero value for family law elections.

In Virey v. Virey, spousal divorce support was terminated by judgment on death. Dependant’s relief was ordered under the Succession Law Reform Act. The court’s discretion was not ousted by minutes of settlement or divorce judgment.

In Boudreau v. Jakobsen, the court ordered support for a cohabiting common law spouse. Applicant qualified as spouse under section 29 of the Family Law Act.

Powers of Attorney

Schedule 8 of the Accelerating Access to Justice Act, 2021 amends the Substitute Decisions Act, 1992. Remote signing of power of attorney documents is permitted. Audio-visual communications technology can be used. At least one witness must be a lawyer or paralegal.

Contact me if you need help with these changes.