Tag: Accelerating Access to Justice Act
A headline of a 2019 Forbes article delivered a blunt message to those of us who practice estate law: “Electronic wills are coming whether lawyers like it or not.”
The article notes that the U.S. Uniform Law Commission “recognizes the trend in online everything” and recently approved the Electronic Wills Act, which provides a framework for a valid electronic will. Under the provisions of the Act, individual states can determine the number of witnesses required for the creation of a will and whether their virtual presence is sufficient. The will has to be in text form, meaning that video and audio wills are not allowed but, once the will is signed, witnessed and notarized (if required), it will be legal.
In Canada in 2020, the Uniform Law Conference of Canada (ULCC) approved in principle amendments to its Uniform Wills Act to allow for the drafting of electronic wills. A progress report from the ULCC notes that the Electronic Transactions Act has determined that the electronic medium was “sufficiently established, reliable and usable to be accepted for all business purposes.”
The Act specifically exempts three areas: wills, powers of attorney and conveyances. The exemption for wills should be lifted, the ULCC committee recommends, noting that “we now have almost 15 years of experience of electronic commerce … much of our daily lives and arrangements are performed electronically – most of our banking, all of our healthcare records, most of our insurance and even our professional certification is all carried out electronically. In that context, what argument could be advanced that wills are so different and so exclusive that they could not be accommodated under our approach to electronic commerce.”
The committee claims that “other than ‘tradition’ it is difficult to identify any cogent argument to support the continued exception. An electronic record, once stored, is reliable, can be retrieved for future use and its ‘custody and control’ is probably more clearly tracked in electronic form than in hard copy.”
Most provinces are being cautious about embracing electronic wills, or e-wills. British Columbia has taken the lead with the establishment of Bill 21: Wills Estates and Succession Amendment Act, 2020. Bill 21 was built upon a ministerial order that permitted the electronic witnessing of wills while British Columbia was in a state of emergency due to the COVID pandemic. It expands the definition of a will to allow one done in “electronic form” to satisfy the requirement that a will must be in writing. The bill received royal assent in August, 2020.
In Ontario, Attorney General Doug Downey has been content to partially open up estate law to the electronic medium. With the passage of Bill 245, Accelerating Access to Justice Act, 2021, the virtual witnessing of wills and power of attorney documents is now allowed in Ontario on a permanent basis. Previously, it was introduced on a temporary basis during the pandemic.
Virtual witnessing means the testator and witnesses can be connected through a video call, rather than being physically together in a lawyer’s office. There are two important caveats to keep in mind – the first being that at least one of these witnesses must be a licensed lawyer or paralegal. They are there not just to be a witness, but also to confirm that the testator has the requisite capacity to sign the Last Will and Testament and that they fully appreciate the nature and contents of it.
The second caveat is that while the act of signing can be done virtually, electronic signatures are not allowed. Instead, everyone involved must print out the documents and sign them in wet ink. Once they are put together and stored safely, the will is complete and legal.
While the Forbes article quoted in the introduction may be correct about e-wills being inevitable – some U.S. states, Britain and Australia have either passed laws allowing digital wills or are considering them – there are still many reasons for people to maintain the traditional approach for the time being.
The human contact between the testator and legal counsel offered in a face-to-face meeting cannot be fully replicated in a virtual meeting. This contact builds trust and reassurance, which is vital when drafting this important document. There is also a unique set of concerns surrounding the preparation of estate planning documents that sets them apart from other legal documents that are signed digitally.
At Hull & Hull LLP, we will be monitoring the evolution of e-wills and working to accommodate any legislation the province introduces, but we are glad to see Ontario taking a cautious approach in this area.
Take care, and have a great day.
It’s a good idea to update your will every five years since everyone’s personal situation keeps changing. Maybe you were married, separated, had a child or moved to the other side of the country; the possibilities are endless. If you are a parent, it is especially important to have a legal professional look at your will to ensure that your children will be taken care of in the event of your death.
With the divorce rate in Canada hovering at around 40%, it is not surprising to see that blended families and second marriages are becoming more common. The 2016 Canadian Census shows that one in 10 children live in stepfamilies, an arrangement that can cause complications from an estate planning perspective if the parents don’t take the time to update their will to reflect that change.
Many stepparents treat a stepchild as one of their own, especially if the child is young when their biological parent and stepparent got together. But if one or both of the parents were to die, the stepchild may be denied the inheritance you intended to leave them if you didn’t take the steps necessary.
Many people will change homes in their lifetime, in pursuit of job opportunities or for personal reasons. If you cross a provincial border, the rules governing estate succession may be different than in the province where you drew up your will. If you move to another country, you definitely need to make changes to your estate planning to reflect that change.
If you have children, you should designate someone to act as their guardian in the event of your death. If your child was quite young when you drew up your will, it might be that guardian is not the person you want in the position five or 10 years later.
The same situation applies to the appointment of an executor. Perhaps you have grown apart from the person you first appointed and you wish to have another friend or family member in that important role. If your executor has moved to another country, they will have to go through additional steps and expenses to fulfill their responsibilities, which is a good reason to re-evaluate who is in this role.
If your marriage ends in a divorce, that does not invalidate your will, though the provisions that refer to your spouse are revoked. This means they can no longer be your executor, trustee or guardian, and any gifts you left to them will go to someone else. A divorce is also an appropriate opportunity to reconsider beneficiary designations on any insurance products, RRSPs, TFSAs and financial products.
Starting in 2022, marriages will no longer invalidate a signed will, thanks to the passage of Bill 245, the Accelerating Access to Justice Act. It repealed the provision in the Succession Law Reform Act that automatically revoked a will upon marriage. It also eliminates property rights on death when spouses have separated but not divorced and is applicable whether the deceased dies with or without a will.
If you enter into a common-law relationship, keep in mind your partner is not recognized in Ontario for the purposes of succession unless you have amended your will to provide for them. A surviving common-law spouse has no right to the estate you leave behind, though they may make a claim for dependant support.
If a person you have designated as a beneficiary dies before you do, you should consider amending the will to remove any reference to them and to reallocate your gifts. If not, the gift will be transferred to the residue of the estate.
Life is constantly changing and your will needs to reflect those altered circumstances.
Thanks for reading and have a great day,
Like many in the estates world, we have been closely following the evolvement of Bill 245, the Accelerating Access to Justice Act, 2021. Initially introduced in February of 2021, Bill 245 significantly alters Ontario’s estate laws. Bill 245 was proposed by the government in an effort to modernize an outdated system – a proposal that was welcomed by those in the estates community. The Estates Bar welcomes these developments and commends the Attorney General’s office for taking these significant steps in updating our legislation to better reflect the realities of life in the 2020s.
On April 19, 2021, Bill 245 received royal assent. The changes to Ontario’s estate laws are enumerated in Schedule 9 of Bill 245 and include the following:
- The Succession Law Reform Act (the “SLRA”) is amended to provide for the remote witnessing of wills through the means of audio-visual communication technology for wills made on and after April 7, 2020. The execution of a will in counterparts will now be permitted.
- Section 16 of the SLRA, which provides for the revocation of a will upon marriage, except in specific circumstances, is repealed.
- Subsection 17(2) of the SLRA is amended to include separated spouses. As such, any gift bequeathed to a spouse will be revoked upon separation.
- Section 21.1 is added to the SLRA and provides the Superior Court of Justice with the authority to, on application, make an order validating a document or writing that was not properly executed or made under the Act, if the Court is satisfied that the document or writing sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter, or revive a will of the deceased.
- Section 43.1 is added to the SLRA to exclude separated spouses from inheriting on an intestacy.
Bill 245 does not, however, affect the rights of common-law spouses.
The repeal of the provision under the SLRA with respect to the automatic revocation of any pre-existing wills by marriage is an important first step in protecting vulnerable older Ontarians from predatory marriage scenarios. Similarly, the updated rights of separated spouses will, in most cases, result in a more appropriate treatment of separated spouses who do not take the step of obtaining a formal divorce.
The new will validation provision to be added to the SLRA will provide the courts with a mechanism to allow the intentions of individuals who may not be aware of the formal requirements for a valid will to be honoured. In the past, we have seen technicalities prevent what was clearly intended to be a will from functioning as one from a legal perspective.
These changes also have the potential to improve access to justice. In particular, the permanence of virtual witnessing provisions for both wills and powers of attorney has the potential to increase access to justice while preserving necessary safeguards in the will execution process. The emergency measures introduced during the pandemic will allow Ontarians improved access to legal assistance in their estate planning, regardless of where in the province they may be located.
The amendments relating to the remote witnessing of wills and counterpart execution are currently in effect. The remaining legislative amendments will not come into force until a day proclaimed by the Lieutenant Governor, which will not be earlier than January 1, 2022.
Thanks for reading and have a wonderful day,
Suzana Popovic-Montag & Tori Joseph
There have recently been many proposed changes to estate laws in Ontario under the Accelerating Access to Justice Act, 2021. The Bill passed Second Reading on March 2, 2021, and was referred to a Standing Committee.
We have blogged on many of these proposed changes. See “Modernizing the Succession Law Reform Act”, and “Ontario Raises Small Estate Limit to $150,000 – Now What?”.
One of the proposed changes is an increase in the amount of money that can be paid to a parent of a child when money is owed to the child.
As a starting point, it must be kept in mind that a parent of a minor is not the guardian of the child’s property unless specifically appointed as such by the court. A parent is not authorized to deal with a child’s property.
However, if a person is under a duty to pay money or deliver personal property to a minor (such as an Estate Trustee where there is a bequest to the minor), the person may pay the amount owing or deliver the property to a parent with whom the child resides, per s. 51(1) of the Children’s Law Reform Act (“CLRA”). However, s. 51(1.1) of the CLRA presently limits the amount payable to the parent to $10,000. If the amount payable is more than $10,000, other steps will have to be taken, such as the appointment of a guardian for the child, or the payment of the funds into court.
Under the proposed revisions to the CLRA and its regulations, this amount is to be increased to $35,000. Further, the provision will specifically apply to money payable under a judgment or court order or on an intestacy. Currently, amounts payable under a judgment or court order were specifically excluded.
Under the CLRA, a parent who receives funds on behalf of a minor has all of the responsibilities of a guardian for the care and management of the money or property. The parent may be required to account, and must transfer the money or property to the minor when they turn 18.
Thank you for reading. Have a great weekend.