Changes to Wills and Estates Law
Updated: Feb 21, 2022
A number of significant changes were made in 2021 and 2022 to Wills and Estates laws in Ontario.
Remote signing of Wills and Powers of Attorney
The signing of wills and powers of attorney can now be witnessed by videoconference. This change was prompted by the Covid-19 pandemic to enable safe, socially-distant witnessing of these important documents.
Wills, other than holographic wills, require that the maker of the will or power of attorney sign the document or else acknowledge his/her existing signature in the presence of at least two witnesses who are present at the same time. For powers of attorney, the maker must sign the document in the presence of the witnesses. Subject to certain conditions, witnessing can now be accomplished virtually. At least one of the witnesses must be an Ontario lawyer or paralegal, and the signing by the maker must be contemporaneous with the signing of the witnesses who will each have their own identical copies of the will or power of attorney. All three copies together will constitute the will or power of attorney.
Spousal share of an intestacy increased to $350,000 Where a spouse has died without a will (resulting in an intestacy) on or after March 1, 2021, the surviving spouse is entitled to what is known as the preferential share of the value of the estate. That preferential share has been increased from $200,000 to $350,000, but as of January 2022, any entitlement to a preferential share is subject to s. 43.1 of the Succession Law Reform Act (“SLRA”), referred to below.
Small Estate Application for Certificate of Appointment
A simplified process now exists for applications for a Small Estate Certificate (estates valued at up to $150,000). Those applications can be filed without requiring a bond where there is no minor or incapable beneficiary.
New estate forms for applications for Certificates of Appointment As of January 2022, the old application forms have been replaced with new ones with a more user-friendly formats, and can now be submitted to the Estates Office for processing by email. The forms are available online here: http://ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/pre-formatted-fillable-estates-forms/
Court determination of the validity of a Will Ontario has now authorized the court to recognize a Will as being valid if it substantially complies with the requirements under the SLRA. More about this important change is described in another post, available here.
Separated Spouses no longer benefit without a Will
Under s. 43.1 of the SLRA, if spouses are separated for three years or more, and one dies without a Will, the surviving spouse will not inherit, and would have to claim an entitlement through some other means, such as constructive or resulting trust. The same treatment applies if the separation was for less than three years, but there is a valid separation agreement in place, or a court order or arbitration award.
Marriage no longer revokes a Will
A will made before a person marries remains valid even after the marriage occurs. Before January 2022, any will made prior to marriage was automatically revoked unless it was made in specific contemplation of marriage and contained reference to the marriage and the spouse. The former regime often led to unwanted outcomes by the maker of the will if he/she had no knowledge of the impact of marriage on the estate.
If you have an estates law question, contact MZS Lawyers today.