Bill 245: All About the New Changes to Ontario Estate Law

Thanks to the COVID-19 pandemic, the rules and regulations concerning Ontario estate planning in regards to the witnessing and signing of powers of attorney and wills have evolved. They have been transformed to meet social distancing requirements while abiding by measures set up amidst the lockdown.

Our real estate lawyers in Mississauga have been following the changes and updates to Bill 245, Accelerating Access to Justice Act, 2021, which received Royal Assent on April 19. Introduced in February, the bill was proposed by the government to bring in significant reform to Ontario Estate Law. This includes modernizing the current outdated system while improving and enhancing access to justice for Ontarians.

In this blog, our real estate lawyers provide an overview of some of the most important changes.

Everything-You-Need-to-Know-About-Bill-245

Ontario Estate Law: Bill 245 (Important Things to Know About)

Wondering how Bill 245 changes Ontario estate law and what it means for you? Here, we break down the important information.

What Is Bill 245?

On February 16, 2021, Bill 245, Accelerating Access to Justice Act, was tabled by the Ontario legislature. Since then, it has passed a range of changes concerning the Succession Law Reform Act (SLRA) in Ontario. These changes are expected to come into effect by January 1st, 2022.

What Are the Changes?

Bill 245 received Royal Assent on April 19, 2021. Here are the changes you can expect to see.

1. Virtual Signings Have Become Permanent

In response to the COVID-19 outbreak, the government passed an Emergency Order on April 7, 2020, permitting virtual signings of powers of attorney (POAs) and wills, provided that one of the witnesses is a licensed paralegal, lawyer, or property lawyer. This means the witnessing can take place via audio-visual technology through which participants can see, hear, and communicate with each other in real-time. This will make it significantly easier for individuals to have their documents witnessed without needing to meet one another in person.

What this means is that you and your witnesses can get together on a video call to witness the signing. However, this doesn’t mean that you will sign the document digitally. All the witnesses will need to print their documents and sign them physically. Next, they will have to mail the original copy to the other witnesses to get their signatures.

2. Marriage Doesn’t Revoke a Will

Previously, Section 15(a) and 16 of the SLRA annulled an individual’s will once they had been married. So, if you died after the marriage and failed to update your existing will or make a new one, then you would die intestate.

However, this has been a topic of concern among many as it raised concerns about elderly individuals being victimized by predatory marriages. Example: someone marries a susceptible elderly person with the intent to nullify their will and gain access to their property.

So, it’s a good idea to review and update your will once you are married to ensure it reflects your current wishes.

3. Separation Will Eliminate Property Rights

Under the new legislation, as of January 1, 2022, an ex-spouse will no longer have rights to the deceased individual’s estate, even if the pair aren’t legally divorced.

According to the new rule, you and your partner will be considered separated if you have been living apart for three years and have either a court-ordered or valid separation agreement. So, under the latest change, residents of Ontario who fall under these rules will be able to review their estate planning documents and make changes as they see fit.

4. Introduction of Substantial Compliance

Until now, a will was valid only if it was executed by strictly complying with the requirements of the legislation. However, under the current legislative changes, if the court believes that any document wasn’t executed properly or made in compliance with the Succession Law Reform Act of Ontario, it can deem the will valid. The law doesn’t specifically expand to validate wills made electronically.

While this change makes it less arduous to have a will that is valid, it may result in further litigation being required. This will be necessary as the beneficiaries named in any will that doesn’t conform to Ontario Law’s requirements will seek to validate the document as they may have a valid claim to the property.

5. Courts Can Save Invalid Wills

Previously, Ontario had strict rules when it came to executing a will, resulting in the documents becoming invalidated when not in compliance with them. This resulted in testamentary documents being deemed invalid, which further lead to an intestacy.

However, Bill 245 introduces a new section (21.1) of the SLRA that gives power to the Ontario Superior Court as of January 1, 2022, to validate a will that may have been improperly executed. For instance, if the will in question has only one witness signature on it, the courts wouldn’t be able to toss it out.

According to the new rules, the courts would have to find the intention of the testamentary to declare the will valid. This is known as substantial compliance and was already allowed in many other provinces around Canada. Hence, this makes Ontario a substantial compliance jurisdiction; this ensures that defects are looked into if the testator’s intentions were clear from the start.

Now that Bill 245 has received Royal Assent, it will make some major changes to Ontario estate law. In doing so, it overturns hundreds of years of practice to favour an approach better suited to the times. As you can see there are plenty of changes being implemented relating to estates and wills. Should you have any concerns or questions, it’s a good idea to get in touch with a property lawyer in Mississauga who can update you regarding the impact of these changes.