Marriage no longer automatically revokes a will in Ontario

In Ontario, virtual will witnessing is now permanent, courts will be able to save invalid wills and marriage no longer automatically revokes a will.

The province’s estate law reform hit a major milestone with the royal assent of Bill 245 last month. The omnibus bill, first tabled in February, includes changes to the acts governing wills, powers of attorney and intestacy.

The updated legislation “better reflects the realities of life in the 2020s” and “has the potential to improve access to justice,” said Suzana Popovic-Montag, estate lawyer and managing partner with Hull & Hull LLP in Toronto.

Bill 245 permits permanent virtual witnessing of wills and powers of attorney, which was already allowed on a temporary basis in the province. At least one witness must be a licensed lawyer or paralegal. The legislation doesn’t specify an effective date for the provision, but will apply retroactively to any will or power of attorney document signed in accordance with the emergency order of April 7, 2020.

Making virtual witnessing permanent “will allow Ontarians improved access to legal assistance in their estate planning, regardless of where in the province they may be located,” said Popovic-Montag.

The bill will also give courts the power to save wills that might otherwise be found invalid due to technical errors — a power that already exists in the majority of Canadian jurisdictions. (This will take effect no earlier than Jan 1., 2022.) When a will is deemed invalid, estate property is distributed according to the intestacy rules found in a province’s estate act, rather than as the deceased may have intended.

“In the past, we have seen technicalities prevent what was clearly intended to be a will from functioning as one from a legal perspective,” said Popovic-Montag.

After the provision that allows saving a will comes into force, all provinces except Newfoundland and Labrador will operate under what’s known as a “substantial compliance” regime.

Bill 245 also addresses issues surrounding marriage and divorce. Bill 245 repeals the existing provision in the Succession Law Reform Act (SLRA) that automatically revokes a will upon marriage, and eliminates property rights on death when spouses have separated but not divorced — whether the deceased dies with or without a will. Both provisions come into force no earlier than Jan. 1, 2022.

Under the change to the SLRA in Bill 245, a surviving spouse is considered to be separated if the couple was living apart due to a marriage breakdown at the time of the death for three years or more immediately preceding the death; had a valid separation agreement; had a court-ordered settlement agreement; or a family arbitration award had been made.

“Immediately preceding the death” was added to Bill 245 by the standing committee so that the legislation didn’t inadvertently disinherit separated spouses that had reconciled prior to death, said Krystyne Rusek, an estate lawyer with Pallett Valo LLP in Mississauga, Ont.

Under the original wording of the proposed legislation, “the three-year separation period didn’t have to occur immediately prior to death,” Rusek said.

Ontarians “should review their will plans to ensure that their intentions are not defeated by the new rules,” said Keith Masterman, vice-president of tax, retirement and estate planning with CI Investments Inc. in Toronto.

The new legislation is meant “to protect people who don’t get around to changing their will once they’ve separated,” Masterman suggested, but “carte-blanche changes [to estate law] that are probably right for [a large portion] of the population aren’t necessarily right for everyone. There are lots of people who are separated who might still want their spouse to inherit.”

Rusek agreed that the new legislation “could override the intention of distribution to a spouse in a will.”

Rusek also pointed out that under the wording of the new legislation, separations that begin before the effective date (e.g., Jan. 1, 2022) would not be caught by the new provision “no matter how long you’re separated and no matter if you’re still separated at the date of death.” Rusek suggested this technical issue could be addressed by an amendment before the provision is declared in force.

These changes are part of a broader effort by the Ontario government at reforming estate law.

As of March 1, a surviving spouse in Ontario is now entitled to $350,000, up from $200,000, as their preferential share of their spouse’s estate if that spouse dies without a will.

On Feb. 12, Ontario announced that a small estate in Ontario would be defined as those worth up to $150,000, up from $50,000, effective April 1. Small estates are eligible for a simplified probate process. Estate administration tax — sometimes referred to as probate fees — remains due on the portion of the estate worth more than $50,000.

The small estates change and Bill 245 follow a stakeholder consultation that began in August 2020.

Together, those reforms substantially address the questions raised in the August consultation. But the bill does not permit electronic wills; nor does it extend property rights to common-law spouses.

Electronic wills and virtual will witnessing have been permitted on a permanent basis in British Columbia since August 2020, when Bill 21 received royal assent. Several other provinces allow virtual will witnessing on a temporary basis in response to Covid-19.

Melissa Shin

Melissa is the editorial director of Advisor.ca and leads Newcom Media Inc.’s group of financial publications. She has been with the team since 2011 and been recognized by PMAC and CFA Society Toronto for her reporting. Reach her at mshin@newcom.ca. You may also call or text 416-847-8038 to provide a confidential tip.