Improving Access to Justice in Estate Matters
The Ontario government seeks to improve access to justice in estate matters.
Updated post – June 29, 2021
Effective January 1, 2022: Changes Improving Access to Justice in Estate Matters
Updated post – May 6, 2021
Update on Improving Access to Justice in Estate Matters
In light of the COVID-19 pandemic, the Ontario government is now moving to improve access to justice for Ontarians. Notably, the Ontario government has introduced legislation that will modernize estate law. Under the Accelerating Access to Justice Act, 2021, if passed, the Estates bar can hope to see the following amendments to legislation:
Remote Witnessing of Powers of Attorney and Wills
If the Accelerating Access to Justice Act, 2021 is passed, we may see a change to the Substitute Decisions Act (“SDA”) and Succession Law Reform Act(“SLRA”), allowing remote witnessing of powers of attorney and wills through the means of audio-visual communication technology moving forward, retroactively dating back to April 7, 2020. This change would make it easier for individuals to get their important affairs in order, without the limitations of travelling to access in-person legal services.
Using Video Conference to Witness Wills and Powers of Attorney
Will Revocation Upon Marriage
Under the proposed changes, section 16 of the SLRA would be repealed. Currently s. 16 provides that a will is revoked by marriage of the testator except in specified circumstances. This change can help protect the elderly and their families from predatory marriage, assist in estate planning goals and prevent individuals from dying intestate.
How to Protect the Elderly from Will Revocation Upon Predatory Marriage
Impacts of Divorce, Annulment or Separation
Section 17 of the SLRA provides that if the marriage of the deceased and their spouse is terminated by divorce or declared a nullity through an annulment, the deceased’s will upon their death shall be construed as if the living spouse had predeceased the deceased. The proposed amendment to this section would add separation between spouses at the time of the testator’s death, that would cause the same result.
Further, a new section 43.1 of the SLRA would be added providing that where if a spouse dies intestate (i.e. without a will) and the individual was separated from their spouse at the time of their death, the surviving separated spouse would not be entitled to the share of the deceased’s property under Part II of the Act. A complementary amendment would also be made to section 6 of the Family Law Act. This change would limit a separated spouse’s entitlement to their deceased spouse’s estate.
How we can help
We will continue watching the progression and reforms to the SDA and SLRA and will provide an update on how the government plans to move ahead with the Accelerating Access to Justice Act, 2021. If you have questions about remote witnessing of powers of attorney and wills, will revocation upon marriage, or how the impact of a previous or current marriage may impact your estate plan, please contact our Wills, Trusts and Estate Team at Merovitz Potechin LLP.
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