The new year ushered in several important changes for estate planning lawyers:
1. Court Forms
New Ontario Court forms came into force on January 1, 2022, which have simplified the probate application process. It is important to note that old forms will not be accepted after January 1, 2022. These new forms compliment the amendments to the Succession Law Reform Act as detailed below. To access the new court forms, please click here.
2. Marriage no longer revokes an existing will
Prior to January 1, 2022, marriage revoked existing wills however going forward this will no longer be the case. It is important to note that this rule does not apply retroactively.
3. Separated spouses lose entitlements and appointments
Under the new changes to the Succession Law Reform Act, a surviving spouse is deemed “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 in place;
- Had a court ordered settlement agreement; or
- A family arbitration award was made.
What this means is that spouses who have been separated but not yet divorced for at least three years before a death that occurs after December 31, 2021 are treated the same as divorced spouses under the law. Separated spouses will no longer be entitled to benefit under a will or act as an estate trustee.
4. Court validating wills
The Superior Court of Justice in Ontario is now empowered to make orders validating a document or writing that was not executed properly in complete compliance with the formal requirements of creating a will. The court must be satisfied that the document or writing sets out the testamentary intentions of the deceased person or there is clear evidence that the deceased had the intention to revoke, alter or revive his or her will. It is also important to note that this rule does not apply to electronic wills.
5. Virtual witnesses
In Ontario, virtual witnessing of wills and powers of attorney are now permanent. Wills or powers of attorney that are witnessed virtually are only valid if:
- At least one witness is a licenced lawyer or paralegal
- The testator’s and witnesses’ signature are made at the same time
- The participants are able to see, hear and communicate with one another in real time
- Signing by hand is still a requirement for the will or power of attorney to be valid
Many of these rules are welcome changes in modernizing estates law.