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.
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:
(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:
(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.
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In recent months, an Ontario Superior Court of Justice province-wide Notice to the Profession has permitted the filing of applications for a Certificate of Appointment of Estate Trustee with a Will or a Certificate of Appointment of Estate Trustee Without a Will (“probate applications”) by email. Since then, the Rules of Civil Procedure were updated, effective January 1, 2021 to permit for the service of most court materials by email (among other updates).
Most recently, as of January 8, 2021, the Rules of Civil Procedure were further updated to provide for the options of serving notice of probate applications by email, courier, or personal service. Amended sub-rules 74.04(7) and 74.05(5) now read as follows:
Notice under this rule shall be served on all persons, including charities, the Children’s Lawyer and the Public Guardian and Trustee, and, unless the court specifies another method of service, may be served by,
(a) personal service;
(b) e-mail, to the last e-mail address for service provided by the person or, if no such e-mail address has been provided, to the person’s last known e-mail address; or
(c) mail or courier, to the person’s last known address.
Previously, the Rules of Civil Procedure required the Notice of Application in respect of a probate application to be served by regular lettermail.
Forms 74.06 and 74.16 (Affidavits of Service in respect of probate applications) have also now been updated to refer to these new manners of service of the Notice of Application in respect of a probate application. The revised forms are available here.
This further development in the modernization of estates law procedures is welcome and can be expected to better enable lawyers to assist clients in serving and filing probate applications more efficiently while working remotely during the pandemic and beyond.
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We have previously blogged extensively on the issue of inaccessibility of digital assets and the absence of legislation in Canadian provinces, including Ontario, to clarify the rights of a fiduciary to access and administer digital assets on behalf of a deceased or incapable rights holder.
While the Substitute Decisions Act, 1992, and Estates Administration Act provide that attorneys or guardians of properties and estate trustees, respectively, are authorized to manage the property of an incapable person or an estate, Ontario does not currently have any legislation that clarifies these rights by explicit reference to digital assets. While continuing powers of attorney for property and wills can be crafted to explicitly refer to digital assets and the authority of an attorney for property or estate trustee to access accounts and information in the same manner in which the user him or herself was able, access issues can still arise during incapacity or after death.
A recent CBC article highlights the inadequacy of legislation facilitating access to digital assets. A surviving wife of over forty years was the estate trustee and sole residuary beneficiary of her late husband’s estate. In seeking access to an Apple account that she shared with her husband, she was told that she would require a court order, even after providing Apple with a copy of her husband’s death certificate and will. Apple cited the United States’ Electronic Communications Privacy Act, which predates the prominence of computers and the internet in our daily lives, as prohibiting them from distributing personal electronic information. Four years after her husband’s death in 2016, the Ontario woman is now obtaining pro bono assistance in seeking a court order granting access to the shared account in the absence of any other options.
It is anticipated that the adoption of the Uniform Law Conference of Canada’s Uniform Access to Digital Assets by Fiduciaries Act would resolve some or all of the issues currently faced by Ontario residents in accessing and administering digital assets. However, now over four years since its release, only Saskatchewan has implemented provincial legislation mirroring the language of the uniform act.
It will be interesting to see in coming years whether legislative updates will address continued barriers to the access and administration of digital assets and the corresponding access to justice issue.
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Other blog entries that may be of interest:
Natalia Angelini recently blogged about some helpful tips from LawPRO on how to minimize the risk when virtually witnessing Wills and powers of attorney. On April 24, LawPRO posted another helpful article about the risks of “renting out” your signature as a virtual witness.
The emergency legislation requires that one of the witnesses to a Will that is executed by means of audio-visual communication technology (which now temporarily meets the Succession Law Reform Act, R.S.O. 1990, c. S.26 requirement that the testator and witnesses be “in the presence of” each other), be a Law Society licensee. This means that some of us may be asked to be witnesses to a Will or power of attorney that we did not prepare ourselves. However, as LawPRO points out, simply being a witness does not necessarily mean that we will not be held responsible if there are problems with the Will or power of attorney.
Some of the issues that may arise could include the following:
- Problems with the Will or power of attorney not being executed properly, in accordance with the requirements for due execution and the specific requirements of virtual execution pursuant to the temporary legislation.
- The Will or power of attorney not reflecting the testator or grantor’s wishes. This may arise if a testator or grantor prepares their own Will or power of attorney from an online service or kit, resulting in a document that is likely not tailored to the testator or grantor’s particular situation, financial circumstances, and wishes.
- Technical errors in the document, such as the omission of a residue clause, which can drastically impact the distribution of the testator’s assets.
LawPRO has provided some tips for how to protect yourself if you are asked to be a witness to a Will or power of attorney that you did not prepare (although the tips seem equally applicable if you did prepare the document in question):
- Take detailed notes.
- Send a reporting letter following the execution of the document and confirm the scope of your retainer.
- Record the signing (with the client’s permission).
You may also consider having the testator or grantor sign a limited retainer agreement, before you witness the Will or power of attorney, which explicitly sets out that you have been engaged only for the purpose of witnessing the document, and not to review it or provide any legal advice.
Thanks for reading, and stay safe!
These other blog posts may also be of interest:
While digital assets constitute “property” in the sense appearing within provincial legislation, the rights of fiduciaries in respect of these assets are less clear than those relating to tangible assets. For example, in Ontario, the Substitute Decisions Act, 1992, and Estates Administration Act provide that attorneys or guardians of property and estate trustees, respectively, are authorized to manage the property of an incapable person or estate, but these pieces of legislation do not explicitly refer to digital assets.
As we have previously reported, although the Uniform Law Conference of Canada introduced the Uniform Access to Digital Assets by Fiduciaries Act in August 2016, the uniform legislation has yet to be adopted by the provinces of Canada. However, recent legislative amendment in one of Ontario’s neighbours to the west has recently enhanced the ability of estate trustees to access and administer digital assets.
In Alberta, legislation has been updated to clarify that the authority of an estate trustee extends to digital assets. Alberta’s Estate Administration Act makes specific reference to “online accounts” within the context of an estate trustee’s duty to identify estate assets and liabilities, providing clarification that digital assets are intended to be included within the scope of estate assets that a trustee is authorized to administer.
In other Canadian provinces, fiduciaries continue to face barriers in attempting to access digital assets. Until the law is updated to reflect the prevalence of technology and value, whether financial or sentimental, of information stored electronically, it may be prudent for drafting solicitors whose clients possess such assets to include specific provisions within Powers of Attorney for Property and Wills to clarify the authority of fiduciaries to deal with digital assets.
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Other blog posts that may be of interest:
For many Canadians, one or more life insurance policies represent an important component of an estate plan. If a policy cannot be honoured as a result of the cause of the insured’s death, this may completely frustrate his or her testamentary wishes.
The terms of life insurance policies typically address the issue of whether a beneficiary will be entitled to the insurance proceeds in the event that an individual commits suicide. Policy terms typically include a restriction as to the payout of the policy if the insured dies by his or her own hands within a certain of number of years from the date on which the policy is taken out (most often two years).
With the decriminalization of physician-assisted death, there was initially some concern regarding whether medical assistance in dying would be distinguished from suicide for the purposes of life insurance. The preamble to the related federal legislation, however, distinguishes between the act of suicide and obtaining medical assistance in dying.
As mentioned by Suzana Popovic-Montag in a recent blog entry, the Canadian Life and Health Insurance Association suggested in 2016 that, if a Canadian follows the legislated process for obtaining medial assistance in dying, life insurance providers will pay out on policies that are less than two years old. Since then, the Medical Assistance in Dying Statute Law Amendment Act, 2017 has come into force to provide protection and clarity for Ontario patients and their families. This legislation has resulted in amendments to various provincial legislation, including the Excellent Care for All Act, 2010, a new section of which now reads as follows:
…the fact that a person received medical assistance in dying may not be invoked as a reason to deny a right or refuse a benefit or any other sum which would otherwise be provided under a contract or statute…unless an express contrary intention appears in the statute.
The amendments provided for within the legislation introduced by the Ontario government represent an important step in the recognition of physician-assisted death as a right that is distinguishable from the act of suicide. They also confirm the right of individuals who access medical assistance in dying to benefit their survivors with life insurance policies or other benefits.
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Other blog posts that may be of interest:
In December 2016, Ontario repealed the old Escheats Act, replacing it with two separate pieces of legislation, the Escheats Act, 2015 (the “EA”), which pertains to property of individuals who die without heirs, and the Forfeited Corporate Property Act, 2015 (the “FCPA”), which deals with the undisposed-of property of dissolved corporations. In so doing, the legislators appear to have increased the record-keeping burden on Ontario corporations and further expanded the Crown’s power to seize forfeited property via escheat.
Several related amendments to separate acts were introduced along with the FCPA. Specifically, a new section (140(1)(e)) incorporated into the Ontario Business Corporations Act (the “OCBA”) requires corporations to maintain a current register of their interests in land, as well as copies of deeds, transfers and other related documents. In his paper, “Ontario Corporations Beware: Changes to the Law Regarding Record Keeping and Forfeiture of Corporate Property,” Jeffrey Alpert points out that corporations with extensive real estate holdings stand to absorb a substantial administrative burden. As this section stipulates that the register of ownership interests in land must be located at the corporation’s registered office, it would also inconveniently obligate any corporations who outsource their “registered office” to their lawyer or accountant to constantly communicate the relevant, up-to-date information to those individuals.
The legislative changes further boost the Crown’s right to control escheated property. Firstly, upon seizing such property, the Crown can unilaterally terminate any encumbrances. The Crown is required to notify the sheriff and execution creditors of its intention to cancel. Whether such notice will serve as a practical deterrent, however, is unclear. Furthermore, the Crown now boasts near absolute power to seize and put to use forfeited corporate property. While not explicitly stated as such, the legislation essentially allows the Crown, post dissolution, to negate the claims of relief seeking parties and any secured creditors with interests in the forfeited corporate property. If the Crown gives notice for such action as required, those with interests in the pertinent property would have to act immediately to maintain those interests. Lawyers with clients in this position should therefore be clear and prompt in communicating the consequences of the Crown’s actions.
Although we don’t often come across these kinds of situations in our practice, when we do, it’s important to be aware of these recent changes. For an excellent article summarizing the changes, I refer you to this blogpost: Ontario dusts off the escheats rulebook – time to dust off your advice?
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Later this week, House Bill 432 will come into effect in Ohio to update state estate and trust administration law. One of the most notable updates is the adoption of the Revised Uniform Fiduciary Access to Digital Assets Act, along with corresponding updates to Ohio’s Power of Attorney Act.
The American Revised Uniform Fiduciary Access to Digital Assets Act is intended to formalize the authority of attorneys for property and estate trustees to obtain access to digital assets for deceased or incapable users. Prior to its implementation in American states (and in other jurisdictions in which comparable legislation has not yet been introduced), the intervention of the courts has often been required to grant fiduciaries with access to information and assets stored electronically. There continues to be some debate as to whether an attorney for property or estate trustee, authorized to administer tangible property, also has the authority to manage digital assets without legislation and/or terms of the Power of Attorney or Will explicitly extending this authority.
Interestingly, the Revised Uniform Act has been endorsed by Google and by Facebook, both platforms on which a great deal of the world’s digital assets are stored. In 2016, 13 states introduced the Revised Uniform Fiduciary Access to Digital Assets Act. With the introduction or enactment of the Revised Act in another 24 states since the beginning of 2017 alone, it is clear that state legislatures and online service providers alike agree that amendments to the law in recognition of the growth of technology is required to clarify the state of the law of digital assets and fiduciaries.
The Uniform Law Conference of Canada introduced the Uniform Access to Digital Assets by Fiduciaries Act (2016) this past summer. While the uniform acts of Canada and the United States share a number of similarities, there are several important distinctions, which will be highlighted in Thursday’s blog post.
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Other blog posts that may be of interest:
Accessing a Testator’s digital assets can be fraught with difficulty. Part of this difficulty involves the service agreements between the Testator and the service provider. These agreements often prevent the service provider from disclosing the Testator’s personal information.
Recently, Florida, following a trend in the United States, passed Bill SB 494, now known as the Fiduciary Access to Digital Assets Act (the ‘Act’). The legislation defines a digital asset as “……an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.” It also provides of a definition of a fiduciary, which means “an original, additional, or successor personal representative, guardian, agent, or trustee.”
The Act appears to have two main purposes. It confers authority upon appointed fiduciaries to access and manage both digital assets and electronic records. The legislation also allows custodians of this information to disclose it to appointed fiduciaries where the procedural requirements have been met.
The Act includes a priority system for an individual to control the disclosure or non-disclosure of any or all of their digital assets or electronic communications. Depending on the circumstances, a direction for disclosure given through the use of an online tool may override a direction embodied in a Testator’s estate planning documents.
This Act incorporates model legislation drafted by the Uniform Law Commission. The draft legislation is currently being considered by a number of other state legislatures. The Act is effective in Florida as of July 1, 2016 and may apply retroactively to some individuals in certain capacities.
Thanks for reading.
The Canadian government, after receiving a four month extension for passage of Bill C-14, which enables medically assisted suicide, will not meet today’s deadline set out by the Supreme Court of Canada. The Bill has passed its second reading in the Senate and has obtained agreement in principle. Yet, after this vote, the Senate adjourned its hearing until June 7th. As previously blogged, the Bill is a result of the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General) 2015 SCC 5, where the Supreme Court ruled that the blanket criminal code provisions prohibiting physician assisted suicide were unconstitutional. The federal government was initially given a year’s time to put in place remedial legislation, and recently received a four month extension to this deadline. In granting the extension, the majority of the Court stated that it would be unfair to those who already qualify based on Carter to delay the legislation any longer.
Despite this, as of the end of today, physicians and patients will be left in legal limbo. While guidelines have been provided to doctors across the provinces, these could be the cause of significant variation in medical practice.
There are already concerns about the constitutional validity of the proposed legislation. The Alberta Court of Appeal in Canada (Attorney General) v. F. (E.), 2016 ABCA 155 considered the Supreme Court’s guidance in Carter and found that Carter did not limit applications for physician assisted suicide to only those who were terminally ill. It rejected the Attorney General for Canada’s argument that these limits could be inferred from the language in the Carter decision.
The Alberta Court of Appeal found that any attempt to read restrictions into the Carter decision would have to take into account the balance of values struck in Carter: autonomy and dignity of the applicant on one hand, and the sanctity of life and protection of the vulnerable on the other. The Court found that because of these important interests, it would be inappropriate to exclude, by inference, those who meet the criteria in Carter, and were never expressly excluded by the Supreme Court’s decision. The Court of Appeal also found that the Supreme Court did not exclude mental illnesses as the basis for application.
The Bill, as it is currently written, appears only to allow those who are terminally ill to apply. It will be interesting to see whether at this late hour any revisions will be made to the legislation to avoid the obvious challenge to its constitutional validity. Any such revisions will only increase the delay and uncertainty that will exist as of the end of today.
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