Estate law changes on the way

Big changes could be on the way for Ontario’s estate laws if the provincial government gets its way. 

The Ford administration recently introduced Bill 245 the Accelerating Access to Justice Act at Queen’s Park. Here’s a summary of the most significant amendments: 

Permanent virtual witnessing 

The Covid pandemic ushered in a new era for will-making, when emergency regulations were passed allowing testators to have their wills witnessed remotely, without the need to meet in person with their lawyer.  

Bill 245 would make these rules permanent, meaning a will witnessed via audio-visual communication technology is considered valid, as long as one of the two witnesses is a licensee of the Law Society of Ontario and the app used allows participants to see, hear and speak with each other in real time. 

Although the process is not perfect (the amount of paper it generates is ridiculous), I welcome any innovations that make it easier for people to get a will in place. 

Substantial compliance 

The new law would also allow judges to validate wills that would otherwise have been declared void due to technical errors, such as missing signatures or other minor issues.  

The changes would move Ontario’s regime from one of “strict compliance” to one of “substantial compliance,” joining the provinces of Saskatchewan and B.C., which have made similar switches in recent years.  

It may be good news that testators and their intended beneficiaries are not penalized with intestacy for minor mistakes, but the best way to make sure your will accurately reflects your wishes is to hire an experienced lawyer to draft one for you. 

The more complicated and valuable your assets are, the more essential it is to obtain sound legal advice before finalizing an estate plan. 

Marriage revoking a will 

Ontario has been left increasingly lonely in recent years among the dwindling number of jurisdictions sticking with the old-fashioned rule that automatically revokes a person’s will when they marry. 

But Bill 245 would change that if it passes at Queen’s Park, by repealing s. 16 of the Succession Law Reform Act. 

Attorney General Doug Downey has suggested the change will help protect victims of predatory  marriages, but the old rule was also valuable for preserving the rights of new spouses in non predatory second or third marriages.  

Whatever the future status of s.16, a major life event such as a wedding is the perfect time to either make your first will, or to revisit an existing one to make sure all of your original choices still make sense.  

Other landmark moments – think the birth of a child, divorce, or winning the lottery – should also prompt a fresh look at your estate plan.