This article describes the current laws surrounding wills, estates, and family law that Bill 245 amends. It further establishes how the bill will change these laws and the potential outcomes.
The Succession Law Reform Act (SLRA) revokes a will upon marriage. So if someone drafts their will with a lawyer but later gets married, then the will no longer remains valid.
This creates opportunities for predatory marriages, where a younger individual befriends a wealthy, older person and persuades them into a marriage. Once married, the older person's will is invalidated unless their marriage agreement states otherwise. Therefore, if they pass away, they die intestate. In such a scenario, a certain amount would automatically go to the widow before any of the person's children.
In Banton v. Banton , a 31-year-old woman befriended and subsequently married an 88-year-old man with limited mental capacity. After the marriage, the man didn't reissue his will. After he passed away, 1.5 years after the wedding, the Court found that a significant amount of the man's estate now belonged to the 31-year-old woman.
When a person dies intestate, they leave the first $350,000 (previously $200,000) of their estate to their spouse, with the remainder divided between their spouse and any children. Suppose the facts of Baton v. Baton occurred today, and the 88-year-old man had an estate of $400,000. In this case, $350,000 would go to his 31-year-old wife, and the remaining $50,000 would be divided among his wife and children.
The increase in intestate provisions to a testator's spouse — from $200,000 to $350,000 — was added to ensure the financial survivability of surviving spouses.
Bill 245 partially rectifies predatory marriage issues by cancelling the SLRA provisions that automatically revoke a will upon marriage. This amendment means that cases such as Baton v. Baton are no longer possible. This amendment comes into effect no earlier than January 1, 2022.
The bill further eliminates property rights on death to separated spouses who are not divorced. Currently, section 17(2) of the SLRA states partners must obtain a legal divorce before their will is revoked.
Bill 245 removes a partner from the will if they've been separated — i.e., separated due to marriage breakdown for three years or more, had a valid separation agreement, had a court-ordered settlement agreement, or a family arbitration award was made. This move ultimately protects individuals who forget to change their will after a separation. However, redrafting your will after separation remains the best way to protect your loved ones after you pass.
The Ontario government also added a new section to deny spousal entitlements if the deceased and their spouse are separated at the time of death. In such a scenario, "separated" has the same definition as the last amendment. Both amendments come into effect no earlier than January 1, 2022.
To properly execute a will, it must meet a set of legal requirements. Otherwise, the testator is often deemed to have passed away intestate. However, Bill 245 allows courts to validate wills that don't meet the threshold of proper execution. Similar to the harmless error doctrine currently legislated in many US jurisdictions, the bill's amendments enable a court to look at the broader context and the intentions of a testator to determine whether to validate a will, despite a lack of legal execution.
This is important because a will can no longer be void just because the wrong person witnessed it or missing a particular detail.
Bill 245 allows virtual witnessing of wills and power of attorneys. This is valid for all remote wills made on or after April 7, 2020. The province already allowed virtual (through audio-visual communication) witnessing due to COVID-19, but the ability to do so is here to stay.
One witness must be a licensed lawyer or paralegal, however. Additionally, online witnessing doesn't extend to allow electronic signature use in wills. Ontario law will still require you to print and physically sign documents.
Bill 245's amendments are generally welcome changes to Ontario's estate planning and family laws. Many of these amendments and sections hope to improve access to justice by simplifying the estate planning and administration process.
If you're a lawyer or legal team hoping to simplify your estate administration process for clients further, Estateably can help. Let us show you how it works. Book a free demo today.