Modernizing the Succession Law Reform Act

March 1, 2021 Sydney Osmar Estate Planning, In the News, Wills Tags: 0 Comments

The Accelerating Access to Justice Act, 2021 (“the Act”) or Bill 245, intends to usher forward significant, and welcome, changes to the Succession Law Reform Act (“SLRA”), if passed.

This blog is not intended to be a comprehensive review of the proposed changes, and only seeks to provide an overview of some of the most significant changes.

Making Virtual Witnessing, Execution and Counterpart Execution Permanent

The Act repeats the content of the emergency orders passed by the Ontario government, initially intended to provide for a temporary solution to the difficulties posed by social distancing. In doing so, the new section 4 of the SLRA will provide for the permanent option to have Wills witnessed and executed through the use of audio-visual technology, and, for the execution of Wills in counter-part.

Eliminating Revocation by Marriage

The Act proposes to revoke section 15(a) and section 16, thereby eliminating the automatic revocation of Wills as a consequence of marriage. This particular amendment comes as a result of calls to provide greater protection against predatory marriages.

Treating Separated Spouses more similar to Divorced Spouses

Section 17(2) of the SLRA sets out that, unless a contrary intention appears in the Will, where a marriage is terminated by divorce or declared a nullity, a devise or bequest to a former spouse, an appointment of a former spouse as estate trustee, and the conferring of a general or special power on a former spouse, are revoked, and the Will is construed as if the former spouse had predeceased the testator. This particular provision does not include reference to separated spouses, and the proposed amendments intend to address this gap.

New subsection 17(3) will make it such that section 17(2) will apply to spouses separated at the time of the testator’s death, with necessary modification. The new section 17(4) defines when a spouse is considered to be separated, including that if, before the testator’s death:

  • they lived separate and apart for three years as a result of a breakdown in marriage;
  • they entered into a valid separation agreement under Part IV of the Family Law Act,
  • a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or
  • a family arbitration award was made with respect to their rights and obligations as a result of their marriage breakdown, and
  • at the time of the testator’s death, they were living separate and apart as a result of marriage breakdown.

The Act also proposes new section 43.1 which will eliminate a separated spouse’s entitlements on intestacy. The section relies on the same definition as set out above, to define “separated spouses.”

Moving from Strict Compliance to Substantial Compliance

The Act proposes new subsection 21.1 which provides for the court-ordered validity of a testamentary document. The proposed section sets out that if the Superior Court of Justice is satisfied that a document that was not properly executed or made under the SLRA sets out the testamentary intentions of a deceased, or an intention to revoke, alter or revive a Will of the deceased, the court may, on application, order that the document is a valid and fully effective Will.

The proposed provision does not expand to electronic Wills, which will continue to be considered invalid testamentary instruments.

The Act provides that substantial compliance, as set out in section 21.1 will only apply if the deceased died on or after the date in which the proposed amendments come into force.

To learn more about the Act, and its proposed amendments, please see the below:

Ontario Newsroom – Accelerating Access to Justice Act

Law Times – Proposed estates law changes will create convenience…

Albert Oosterhoff – Welcome Amendments to Ontario’s Succession Law Reform Act

Thanks for reading!

Sydney Osmar

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