Tag: bill 245

07 Jul

Electronic wills may be ‘inevitable’ but they have drawbacks

Ian Hull In the News, Wills Tags: , , , , , 0 Comments

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.

Ian Hull

16 Jun

The Simplicity of Online Will Kits is Their Biggest Shortcoming

Suzana Popovic-Montag Estate Planning, Wills Tags: , , 0 Comments

The appeal of an online will kit is undeniable. Advertisements promise that, for less than $100, anyone can draw up a will in just 20 minutes without ever having to set foot in a lawyer’s office.

While this convenience and low cost will appeal to some, there are significant drawbacks that must be considered when comparing a do-it-yourself document to a traditional Last Will and Testament that a lawyer would prepare.

For example, one of the key selling points of a kit is that it is simple, with few forms to fill out. That should set off alarm bells. Most of us have complicated personal and financial lives. When we die, we will leave behind complex estates that include investments, property, securities and perhaps multiple beneficiaries. A proper estate plan can hardly be captured in the fill-in-the-blank format of an online will kit.

Although these kits claim to cover all the legal issues that govern estate planning, how will you know that they do? If there is a mistake or omission, your beneficiaries will pay the price for the shortcut you took when drawing up your will.

Convenience and a low up-front cost are no substitutes for the advice a wills and estates lawyer can provide. As mandated by the Law Society of Ontario, we constantly take courses to ensure we are aware of new developments in the law. Standardized online kits may not reflect changes brought about by the courts and provincial government.

For example, Bill 245, the Accelerating Access to Justice Act, significantly alters Ontario’s estate laws. As I discussed in a previous post, it makes five major changes to the Succession Law Reform Act. It can be assumed that an online will kit will not address those legislative updates.

The role of the lawyer is to make sure your Last Will and Testament reflects your intentions for your estate after you die. Estate lawyers are versed in the laws of the province, so we can ensure your Last Will and Testament complies with all provincial legislation as it divides up your asset as you desire.

A will drawn up by a legal professional should help avoid uncertainty and court challenges after your death, reducing the fees your estate will have to pay. The more complex your estate, the more important it is to make sure your will reflects that complexity, while clearly laying out your final wishes. An online form that can be completed in 20 minutes pales by comparison.

Another problem with online will kits is that they may be met with court challenges. With a traditional will, clients discuss the details of their estate with a lawyer who can identify problems that may arise in the future, as well as suggest ways to avoid them. Do-it-yourself kits may not effectively address scenarios such as blended families or if you have children with different spouses. These issues require appropriate language when drafting a will – phrasing that an estate lawyer can provide.

Legal counsel can ensure your will is free of vague wording and conflicting or ambiguous provisions. The wording in an online kit may sound professional, but it may not meet the high standard a legal practitioner would bring to the document’s preparation.

Don’t take a chance with the inheritance you want to leave loved ones. You may never know if saving a few hundred dollars on preparing your will was worth it, but your loved ones may if problems arise.

Contact me if you need assistance with drawing up this important document – and have a great day!

Suzana Popovic-Montag

26 May

Why it is Important to Update a Will as a Family Ages

Ian Hull Estate Planning, Wills Tags: , , , 0 Comments

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,

Ian Hull

05 May

Changes to Ontario’s Estate Laws

Suzana Popovic-Montag In the News, Wills Tags: , , , 4 Comments

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:

  1. 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.
  2. Section 16 of the SLRA, which provides for the revocation of a will upon marriage, except in specific circumstances, is repealed.
  3. 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.
  4. 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.
  5. 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

13 Apr

Are updates to the Substitute Decisions Act being proposed too?

Nick Esterbauer Capacity, Elder Law Tags: , , , , , , , 0 Comments

Recent discussion of proposed amendments to the Succession Law Reform Act under Bill 245 has raised questions of whether corresponding changes will be made to the Substitute Decisions Act, 1992.  In particular, some estate lawyers are wondering whether a new validation section may be added to the Substitute Decisions Act to address the issue of court validation of powers of attorney (like the new section 21.1 of the Succession Law Reform Act has been proposed to allow courts to validate improperly-executed wills) and/or whether remote execution options may soon be made permanent for powers of attorney as well as wills.

Validation Provisions

The Substitute Decisions Act already contains curative provisions that allow the court to validate incapacity planning documents in circumstances where the documents are not executed in strict compliance with formal requirements.

Subsection 10(4) of the Substitute Decisions Act reads as follows with respect to the validation of Continuing Powers of Attorney for Property:

Non-compliance

(4) A continuing power of attorney that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the continuing power of attorney to be effective if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so.

Subsection 48(4) of the Substitute Decisions Act reads as follows with respect to the validation of Powers of Attorney for Personal Care:

Non-compliance

(4) A power of attorney for personal care that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the power of attorney for personal care to be effective if the court is satisfied that it is in the grantor’s interests to do so.

Remote Execution of Documents in Counterpart

While the focus of discussions among estate lawyers regarding Bill 245 may be the proposed updates to the Succession Law Reform Act and, in terms of formal will execution, the amendment of section 4 as it relates to the requirements for the witnessing of wills, Bill 245 also includes proposed changes to the Substitute Decisions Act under Schedule 8.

A new section 3.1 of the Substitute Decisions Act is being proposed to add specific references to the use of audio-visual communication technology and counterpart signing options in the execution and witnessing of Continuing Powers of Attorney for Property and Powers of Attorney for Personal Care.  Accordingly, if Bill 245 is passed, the remote and counterpart execution options made available during the pandemic will be made permanent for wills and powers of attorney alike.

Thank you for reading.

Nick Esterbauer

12 Apr

Importance of Strict Compliance with Formal Will Execution Requirements

Nick Esterbauer Estate Planning, Wills Tags: , , , , 0 Comments

As many of our readers know, Ontario may be well on its way to becoming a jurisdiction in which wills may be validated notwithstanding that they are not strictly compliant with the formal requirements set out under the Succession Law Reform Act. However a recent decision of the Ontario Superior Court of Justice reminds us that Ontario, for now at least, remains a strict compliance jurisdiction where all formalities must be followed in the execution and witnessing of wills and codicils.

During the pandemic, many lawyers have taken advantage of the ability to assist clients in the remote execution and witnessing of their wills, as well as the execution and witnessing of wills in counterpart. In order to validly do so, the will must be witnessed using audio-visual communication technologies. In Re Swidde Estate, 2021 ONSC 1434, however, the drafting solicitor and other witness were neither in the physical presence of the testator nor in her presence by way of audio-visual communication technology, at the time that a codicil was signed. Instead, the witnesses were in communication with the testator over the phone (without video) at the time that she signed the codicil. The codicil was later couriered to the witnesses who then each signed the same document. The Court found that this did not meet the requirements set out under the Emergency Order in Council permitting remote execution and witnessing of wills, and the codicil could not be admitted to probate. This case may serve as a reminder to drafting solicitors to ensure that all requirements are strictly adhered to. In that regard, readers may find it helpful to use a checklist, such as that available through our website (linked here), when assisting clients in the remote execution of wills or other estate planning documents.

Bill 245 is currently in its third  reading. Section 5 of Schedule 9 to the Bill provides for the Court validation of wills where a document sets out testamentary intentions but has not been properly executed or made. Such a provision would enable a judge in circumstances such as those in Re Swiddle Estate to validate a will or codicil that was not properly executed. This provision will come into effect no earlier than January 1, 2022 and will apply only to wills left by persons who have died following that date, subject to further changes before the legislation may be finalized and may ultimately take effect. Accordingly, especially while Ontario remains a strict compliance jurisdiction, it is important to exercise caution in ensuring that all wills we prepare are properly executed and witnessed.

Thank you for reading.

Nick Esterbauer

23 Mar

Hull on Estates #609 – Will Validation Law Proposed for Ontario

76admin Estate Planning, Hull on Estate and Succession Planning, Hull on Estates, Podcasts Tags: , , , 0 Comments

 This week on Hull on Estates, Doreen So and Nick Esterbauer discuss Bill 245’s proposed addition of Section 21.1 to the Succession Law Reform Act and contemplate the differences between strict compliance, substantial compliance, and will validation provisions.

 For more information on this and other changes proposed under the Accelerating Access to Justice Act, please see last week’s discussion featuring Jonathon Kappy and Rebecca Rauws here.

 

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Doreen So

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09 Mar

Hull on Estates #608 – Bill 245: Upcoming Changes to the Succession Law Reform Act

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Uncategorized Tags: , , 0 Comments

This week on Hull on Estates, Jonathon Kappy and Rebecca Rauws discuss Bill 245, and the upcoming changes to the law if the Bill is passed. Bill 245 includes, among other things, changes to the Succession Law Reform Act, the Substitute Decisions Act, 1992, and the Children’s Law Reform Act.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

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