Progress Made Towards Changes To Estates Law In Ontario

By Nathan M. Fabiano Mar 31, 2021

Bill 245 has passed its Second Reading. Bill 245 is an omnibus bill that, if passed into legislation, will substantially reform estates law in Ontario. The Bill proposes changes to both the Substitute Decisions Act, 1992 and the Succession Law Reform Act.

Pertaining to the Substitute Decisions Act, 1992, Bill 245, in its present state, will permanently allow for the virtual witnessing of wills and Powers of Attorney. Currently, remote witnessing is permitted on a temporary basis by regulations made under the Emergency Management and Civil Protection Act, as a response to the COVID-19 pandemic.

Remote witnessing will allow individuals to sign wills and powers of attorney from their homes. One of the requirements, however, is that at least one witness must be a licensed lawyer or paralegal. As witnesses, lawyers and paralegals must take extra precaution to ensure that there is no one else present in the room who may be providing testamentary undue influence.

Perhaps the most significant change proposed in Bill 245 is that it would grant judges the power to validate wills that have not been properly executed. Presently in Ontario, any will that does not meet all legal requirements is considered invalid, with no ability for the courts to validate or correct the will even if it is entirely correct otherwise. In these situations, the deceased is considered intestate. This is what is known as a “strict compliance” regime.

However, Bill 245 will move Ontario to a “substantial compliance” regime, providing judges with the power to validate an improperly executed will if they are satisfied that the document reflects the testamentary intentions of the deceased. The substantial compliance regime has already been implemented in other provinces, such as British Columbia under section 58 (2) of the Wills Estates and Succession Act.

Bill 245 also addresses issues surrounding marriage and divorce. Presently, under the Succession Law Reform Act, a testator’s will is automatically revoked upon marriage. Bill 245 will repeal this provision, and as such a will signed prior to the testator’s marriage will continue to be valid after marriage.

Bill 245 would also eliminate property rights on the death of a spouse. The legislative amendments provide that if a testator and his or her married spouse were separated at the time of the testator’s death, the surviving spouse will not be entitled to various property rights under the Succession Law Reform Act. This will apply whether the deceased died with a will or intestate.

Bill 245 has now been referred to the Standing Committee. Its outcome will be of interest to all estate practitioners in Ontario, and if passed, will provide significant changes to how estates law is practiced in Ontario.  

Nathan Fabiano is an estate litigation lawyer and author of this blog. If you have a question about Bill 245, or would like to talk to someone about your estates dispute, please call Nathan at 647-427-3343.

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