Accelerating Access to Justice Act

We are a year into life with Covid-19 and while we’ve certainly adjusted to the changes introduced by the Ontario Government in an effort to modernize the justice system, there are more noteworthy changes that will likely come into effect this April. Estate practitioners should be aware of the following:

1. Smarter and Stronger Justice Act

Introduced as part of the Smarter and Stronger Justice Act, 2020, the Ontario government will be simplifying the process to apply to manage small estates. On April 1, 2021, Ontario is setting the limit for a small estate at $150,000. The requirement to post a bond will be removed in most small estate probate applications.

A new regulation was also passed on February 12, 2021 that established a new small estates probate process (O. Reg 111/21), which introduces the “Small Estate Certificate”. What is noteworthy about the Small Estate Certificate is that it is limited to receiving and managing the estate assets listed in the probate application unlike a traditional Certificate of Appointment of Estate Trustee which provides the estate trustee authority to manage all of the Deceased’s assets.

If, after a Small Estate Certificate is issued and additional assets of the estate are discovered but the estate continues to fall under the small estate category, the estate trustee named in the certificate may seek to obtain an amended Small Estate Certificate by filing an application along with relevant materials. However, if the estate trustee determines that the additional assets discovered makes it so that the estate can no longer be classified as a small estate, the estate trustee may be required to apply for a certificate of appointment of estate trustee under Rule 74.

2. Accelerating Access to Justice Act

The Ontario Government has introduced Bill-245, the Accelerating Access to Justice Act, 2021. The aim of Bill-245 is to improve access to justice for people across the justice system by modernizing processes and breaking down barriers in the province’s courts, tribunals, estates law, family law and child protection sector.

During the Covid-19 pandemic, the Ontario Government implemented a number of urgent measures such as the virtual witnessing of wills and powers of attorney with one of the witnesses being a licensee of the Law Society of Ontario at the time of signing.

If passed, Bill-245 would build on the urgent measures introduced during the pandemic to include some of the following changes to the Succession Law Reform Act (the “Act”), Substitute Decisions Act, 1992, and the Children’s Law Reform Act, among others:

1. Permanently allowing the virtual witnessing of wills and powers of attorney made on or after April 7, 2020.

2. Allowing the Superior Court of Justice authority to, make an order validating a document or writing that was not properly executed, if the Court is satisfied that the document sets out the testamentary intentions of the deceased or an intention of a deceased to revoke, alter or revive a will of the deceased.

3. Changes to spousal entitlement where a person dies intestate and they are separated from their spouse at the time of that person’s death.

4. Marriage will no longer revoke a will.

5. Allowing the Office of the Public Guardian and Trustee access to records from local police services to help decide whether to administer an estate.

6. Presently, section 17 of the Act provides that if the marriage of a testator and the testator’s spouse is terminated or declared a nullity, the testator’s will shall be construed as if the former spouse has predeceased the testator. Section 17 will be further amended to allow for other specified instances of spousal separation between married spouses that would have the same result, but as of the testator’s death.

7. Changes to guardianship laws as it relates to children. Currently, parents cannot receive money owed to their children (such as an inheritance) unless they have a court order appointing them as the child’s guardian of property. If the amount owing is less than $10,000, the Bill will allow for the money to be paid directly to the child if the child has a legal obligation to support another person, parent or person with lawful custody of the child.

While it remains to be seen on whether some of these measures will result in increased litigation, it is evident that the government is moving towards simplifying and modernizing the justice system.