The COVID-19 pandemic has forced changes upon us to allow for justice to be dispensed on-line in the form of remote hearings, filings, and other legal processes. In many ways, the pandemic has accelerated technological and other changes that were overdue even before COVID-19 hit.
In Ontario, Bill 245: Accelerating Access to Justice Act, 2021 is the vehicle by which much of the modernization and change is being made to our justice system. Bill 245 received Royal Assent on April 19, 2021. While some amendments do not come into effect until at least January 1, 2022, below is an overview of what to expect. Highlights include permanently allowing for remote witnessing, allowing for courts to validate wills, and preventing existing wills from being automatically revoked upon marriage.
Permanently Allowing Virtual Witnessing
The temporary measures that allowed for virtual witnessing of wills and powers of attorney during the COVID-19 pandemic, are becoming a permanent option in Ontario, provided at least one witness is a licensed paralegal or lawyer in Ontario.
Substitute Decisions Act, 1992
Schedule 8 under the Act amends the Substitute Decisions Act, 1992 to provide for the remote witnessing of powers of attorney entered into on or after April 7, 2020.
Succession Law Reform Act
Schedule 9 makes various amendments to the Succession Law Reform Act, including the following:
Remote Witnessing of Wills Beyond Covid-19 Pandemic
A new Section 4(3) will provide for the remote witnessing of wills through the means of audio-visual communication technology for wills made on and after April 7, 2020, provided that at least one person who acts as a witness is a licensee within the meaning of the Law Society Act at the time of the making, acknowledgment or subscribing of the will.
Eliminating Automatic Revocation of a Will Because of Marriage
Section 16 of the Act will be repealed so that a new marriage will no longer automatically cause a will to be revoked.
Treating Separated Couples as if Divorced
Section 17 of the Act currently provides that if the marriage of the testator and the testator’s spouse is terminated or declared a nullity, then the testator’s will shall be construed as if the former spouse had predeceased the testator unless there is a contrary intention in the will. The section will be amended to included separation, in addition to divorce. A spouse will be considered to be separated from the testator if:
(a) before the testator’s death,
(i) 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,
(ii) they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,
(iii) 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
(iv) a family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and
(b) at the time of the testator’s death, they were living separate and apart as a result of the breakdown of their marriage.
Application for Court-ordered Validity
A new section 21.1 is being added to the Act to give the Superior Court of Justice authority to make an order validating a will that was not properly executed if upon application, the Court is satisfied that the document or writing sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased.
Spousal Entitlements under Part II No Longer Apply if Separated
A new section 43.1 is being added to provide that the spousal entitlements under Part II of the Act if a person dies intestate in respect of any or all property do not apply if the person and the spouse are separated (with a complementary amendment to section 6 of the Family Law Act).
Succession Law Reform Act – Ontario Regulation 54/95 – Intestate Succession – Preferential Share
In addition to the above changes, Ontario Regulation 54/95 has made a significant change to the preferential share amount. Under the regulation, there has been an increase in the preferential share for a spouse of a person who dies without a will, under Part II, Intestate Succession, section 45 of the Act. The amount has been increased from $200,000 to $350,000 for those who died on or after March 1, 2021. The preferential share applies when the deceased dies without a valid will, ie. Intestate and there are children involved. If there are no children, and no one making a financial dependency claim, the surviving spouse will receive all the property. If there is one child involved, the surviving spouse will receive the preferential share amount plus half of the remaining property. If there are two children or more children involved, the surviving spouse will receive the preferential amount plus 1/3 of the remaining property. The children would then divide between them the 2/3 share of the remaining property.