Major changes to Ontario law on Wills and POAs
Updated: May 7, 2021
Bill 245, Accelerating Access to Justice Act, 2021, received Royal Accent recently, though some of the changes are in effect immediately and others will come into effect on a date to be set by the Government. The Bill amends a number of pieces of legislation, but for the purposes of this article, I will focus on the important amendments to the Succession Law Reform Act and the Substitute Decisions Act, 1992. (Note: I have capitalized "Will" throughout when referring to a Last Will and Testament, in order to be clear)
Virtual signing of Wills and POAs
As some of you many know, during the COVID-19 pandemic, the Government made a number of orders under the Emergency Management and Civil Protection Act to help us weather this unprecedented storm. One of those temporary measures was the introduction of virtual signing of Wills and powers of attorney (POAs). With the passage of Bill 245, virtual signing of Wills and POAs will now be a permanent fixture in Ontario law.
Effective immediately (actually deemed to be in force as of April 7, 2020), the new legislation pertaining to virtual signing requires audio-visual technology that permits the parties to "see, hear and communicate with one another in real time." Though there is no requirement to record the meeting, some lawyers do recommend doing so. There are two important requirements, however, in order for virtual signing of Wills and POAs to be valid:
at least one person acting as a witness must be a "licensee" of the Law Society of Ontario (which includes lawyers and paralegals); and
the signing must be "contemporaneous".
The third requirement is that it must comply with any Regulations that the Minister may enact under the Succession Law Reform Act (for Wills) or the Substitute Decisions Act, 1992 (for POAs). Currently there appears to be no additional regulations related to virtual signing.
Another important point to remember is virtual signing requires 3 sets of identical copies (minor variations or non-substantive differences in formatting or layout are deemed identical), and together the 3 sets (called "counterparts") form a single Will or a single POA as the case may be.
Changes in the impact of marriage and separation on Wills
One of the biggest changes, in my opinion, is the repeal of section 15(a) and section 16 of the Succession Law Reform Act. Note: These amendments will come into force on a date set by the Government, but no earlier than January 1, 2022.
Section 15(a) of the current Succession Law Reform Act, provides that a Will is revoked by a subsequent marriage, subject to what section 16 says. That section provides that a subsequent marriage does not revoke a previous Will, if (a) there is a declaration in the Will that it is made in contemplation of the marriage, and (b) if the surviving spouse elects to take under the Will within 1 year after the testator's death and filing the election with the Estate Registrar for Ontario. (there is a 3rd exception, but it's not really relevant to this discussion).
By repealing section 15(a) and section 16, a subsequent marriage will not revoke a previous Will. This has a number of important implications for our practice. For example, no longer do we have to draft a Will "in contemplation of marriage". Second, in our reporting letters to clients (and our legal advice to clients) we no longer have to warn them that, should they get married (i.e., if they are currently common law partners), that their marriage would revoke their Wills. That being said, it does mean estate planning lawyers need to be extra clear about the Family Law Act elections that permit a surviving spouse to take under the Will or receive what the surviving spouse would be entitled to on a fictions divorce (i.e., half the difference in the spouses' net family property).
While the Succession Law Reform Act already has a provision that a divorce interprets a Will as though the former spouse is predeceased (section 17(2) of the Act), now the new amendments add a similar interpretation for separated spouses. Section 17(3) (a newly added section), states that subsection 2 (i.e., divorced spouses) applies to separated spouses, and section 17 (4) (another newly added section) provides guidances as to what "separation" means:
17(4) A spouse is considered to be separated from the testator at the time of the testator's death for the purposes of subsection (3), if,
before the testator's death
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,
they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,
a court made an order with respect to their rights and obligations in the settlement of their affairs arriving from the breakdown of their marriage, or
a family arbitration award made under the Arbitration Act, 1991, with respect to their rights and obligations in the settlement of their affairs arriving from the breakdown of their marriage, AND
at the time of the testator's death, they were living separate and apart as a result of the breakdown of their marriage.
My take away from this is two fold. First, they must have been separated prior to the testator's death and remain separated at the time of the testator's death. Second, only 1 of the 4 options in 17(4)(a) is needed. For example, 3 years separated but no separation agreement and no court order is considered "separated". Or a very recent separation (i.e., 3 months), but with a valid separation agreement is also considered "separated". This is actually very good, because it means, those that cannot afford a lawyer to draft a separation agreement still fall under this new rule, so long as they have been separated for at least 3 years (though some will argue that waiting 3 years is a bit long, since it only takes 12 months of separation to apply for a divorce).
Ontario changing from a "strict compliance" jurisdiction to a "substantive compliance" jurisdiction
This may be the most important change. For years, dare I say forever, Ontario has been a "strict compliance" jurisdiction. This meant that if a Will did not meet the strict requirements to be a valid Will under the Succession Law Reform Act, the deceased would be considered to have died intestate (i.e., without a will). Other provinces that have a slightly more relaxed approach are often called a "substantive compliance" jurisdiction, and now Ontario is jointing them. Note: These amendments will come into force on a date set by the Government, but no earlier than January 1, 2022.
The new section 21.1(1) will provide the following guidance:
21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.
This is a huge change. Given that is it brand new, it is difficult to tell what the court will look for in order to accept an otherwise invalid Will is in "substantial compliance" with the strict requirements of the Succession Law Reform Act. Though, I suspect that courts would look to the other jurisdictions to glean what they have done in the past.
No Electronic Wills
The amendments to the Succession Law Reform Act do not change the fact that electronic Wills are still invalid. In fact, in the new section on "substantial compliance", they've added 21.1(2) "No electronic wills". That new provision states that court-ordered validity of Wills is subject to section 31 of the Electronic Commerce Act, 2000. That section reads as follows:
Documents to which Act does not apply
31 (1) This Act does not apply to the following documents:
1. Wills and codicils.
2. Trusts created by wills or codicils.
3. Powers of attorney, to the extent that they are in respect of an individual’s financial affairs or personal care. [...]
So, unless (or until) the Electronic Commerce Act is amended, you cannot use Adobe eSign or electronic signatures, or a text-message holographic Will. Wills need to be in paper, and signed in ink. Even in counterparts (provided for under the new rules for virtual signing), it is still 3 sets of paper with 3 sets of wet ink signatures, forming a "single" Will or POA.