Tag: Ontario’s Succession Law Reform Act
When a person makes a claim for dependant support from an estate, the application is usually commenced as against the estate trustee of the estate alone. The beneficiaries are not usually parties.
Rule 9.01 of the Rules of Civil Procedure provides that a proceeding may be brought against an estate trustee without joining the beneficiaries as parties (subject to certain exceptions as set out in the Rule).
However, special provisions of Part V of the Succession Law Reform Act, which addresses support of dependants, require service on others involved in the estate. Specifically, s. 63(5) of the Act requires that “all persons who are or may be interested in or affected by” an order for support must be served with the Notice of Application in accordance with the Rules of Civil Procedure before an order for support may be made.
Such an “interested person” is entitled to be present and to be heard at the hearing.
The court may dispense with the need for service where every reasonable effort has been made to serve those entitled to notice, and where it is not possible to identify all of the persons entitled to notice.
Who an “Interested party” is, is not defined. However, guidance may be taken from case law addressing who has standing to challenge a will. Clearly, beneficiaries named under a deceased’s will, or intestate heirs would be affected by an order for support, and would be entitled to notice.
Arguably, creditors of an estate would be affected by an order for support, as the support payments may take priority over their claim. See our blog on the priority of support orders, here.
Often, the dependant support claimant has limited information about the estate and who the “interested parties” in the estate might be. The estate trustee usually has this information. Therefore, the initial Order Giving Directions will often address this by requiring that the estate trustee arrange for service of the Notice of Application for dependant support on the interested parties known to the estate trustee.
As to the manner of service, as the person being served is not a party, “personal service” or an “alternate to personal service”, as defined in the Rules of Civil Procedure, is not likely required. Under Rule 16.01(3), the document can likely be served by mailing a copy to the interested party, or by email, if the court allows this. Good practice is to specify a manner for service in the Order Giving Directions.
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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!
In an effort to modernize the legal system and bring it into the 2020’s, the office of the Attorney General of Ontario introduced Bill 245, also known as the Accelerating Access to Justice Act, 2021, in February 2021. The bill received royal assent on April 19, 2021. Schedule 9 to Bill 245 provides for important changes to the Succession Law Reform Act, RSO 1990, c S. 26 (the “SLRA”). These changes have previously been discussed in Suzana Popovic-Montag’s blog and this podcast by Jonathon Kappy and Rebecca Rauws.
Schedule 9 to Bill 245 provides for six updates to the SLRA. Section 1 of Schedule 9, which makes changes to section 4 of the SLRA, has already come into force and effect. As a consequence of these amendments, the remote execution and witnessing of Wills in counterpart is now permitted on a permanent basis.
The Lieutenant Governor has recently proclaimed that the remaining changes to the SLRA as set out in sections 2 to 6 of Schedule 9 will officially come into effect on January 1, 2022. These changes are briefly summarized as follows:
- Sections 15(a) and 16 of the SLRA are repealed;
- Section 17 is amended to include separate spouses, such that any testamentary gift made to a spouse will be revoked upon separation;
- A new section 21.1 is added to provide for court-ordered validation of a Will that was not properly executed or made under the SLRA; and
- A new section 43.1 is added to provide that the spousal entitlements under the intestacy provisions do not apply if the person and the spouse are separated at the time of the person’s death.
The above-listed amendments are meant to better reflect the modern day experience of individuals and families in Ontario. These changes to the SLRA will certainly be a positive start to the year 2022.
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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
In the Estate of Oliver (Re Oliver Estate, 2021 ONSC 2751) decision on April 12, 2021, the applicant, who was treated as a stepdaughter by the deceased, had her motion seeking appointment as Estate Trustee dismissed. William Oliver died intestate on July 14, 2020, and had no spouse, children, parents, siblings, nieces or nephews survive him. The applicant was the daughter of the person with whom the deceased cohabited in a common-law relationship in the 1980s and she had remained close to him, even being appointed attorney for him on a TD bank account in 2017.
Justice Macleod found that the daughter of a partner with whom the deceased co-habited, does not fall within any class of person recognized as an heir on an intestacy pursuant to the Succession Law Reform Act, RSO 1990 and Letters of Administration could not be issued under the Act. It was possible to make an order appointing the applicant as administrator of the property of the deceased under s. 29 (3) of the Estates Act, RSO 1990. Instead however, the court referred the matter to the Public Guardian and Trustee to investigate. Such investigative authority can be found in the Crown Administration of Estates Act, RSO 1990 where the “Public Guardian and Trustee is authorized to, (a) identify and locate, (i) persons who may have an interest in the estate, and (ii) other persons, but only for the purpose of locating persons who may have an interest in the estate; and (b) identify the estate’s assets.”
The court can refer a matter to, but cannot order the Public Guardian and Trustee to be appointed as a result of the provisions of Public Guardian and Trustee Act RSO 1990, where, “The Public Guardian and Trustee shall not be appointed as a trustee, by a court or otherwise, without his or her consent in writing”. Given staffing issues and limited resources as well as pandemic restrictions it is perhaps not entirely moot to ask what happens to the estate if the Public Guardian and Trustee does not consent to be appointed Trustee in a case like this.
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There are some important milestones in life when it is imperative for a person to update their will. A later-in-life second marriage certainly is one of them.
If your first marriage ended in divorce, the provisions in your will that refer to your spouse are automatically revoked, as provided by s. 17(2) of the Succession Law Reform Act. Your former spouse will no longer be your executor or trustee or even a beneficiary of your estate unless there is an explicit reference in your will to this.
Keep in mind the same is not true for beneficiary designations relating to assets, such as RRSPs, RRIFs, life insurance policies and pensions. Those will still flow to the individual named in those plans unless you take steps to name new beneficiaries.
If you are separated but not divorced, your will remains entirely valid upon death, in the absence of a separation agreement delineating a married spouse’s entitlement. Therefore, any bequests previously made by a spouse to a surviving spouse remain valid. This situation is not ideal either, since you want to avoid having assets flowing to a person when you are no longer involved with them.
A complicating factor with later-in-life marriages is that they can bring together children from previous relationships. From an estate-planning perspective, this can create complexities.
Perhaps the children from a first relationship resent a step-parent and feel that their step-siblings are now unfairly in line for the estate. Conversely, a step-parent may welcome a spouse’s child as their own or the couple may have a child of their own or adopt one. Where does that leave the other children from previous marriages from an estate distribution perspective?
Aside from the financial implications of having your family members squabble over your estate, there is an emotional component to consider. Children may feel slighted if they do not inherit what they consider to be their fair portion of the estate, even if the intention is that the surviving spouse, in turn, leaves assets to the children upon their death. This approach leaves room for uncertainty, which is the last thing you want to create when drawing up an estate plan.
A common practice for estate planning when it comes to second marriages is to provide a “life estate” to the surviving spouse and a “gift over” to the testator’s children. If the father were to die in this scenario, the matrimonial home and all of his money would be held in trust for his widow for life. She could then make use of these assets but would not have the right to gift them to beneficiaries of her own estate, as the assets would be given to his children upon her death.
Almost any blended-family situation creates tension that can explode into estate litigation if the will is not carefully drafted to address the family’s circumstances. It is important to be clear about your wishes with the lawyer revising your estate plan, taking into account how everyone in your blended family will react to the arrangement.
To sum up, it is crucial to seek the advice of legal counsel about wills before entering into a late-life marriage. Those that do will discover estate planning will be much different than with a first marriage when they had fewer assets and beneficiaries.
Thanks for reading … have a great day,
Some Solace for Surviving Married Spouses: Ontario Increases “Preferential Share” to Spouse on Intestacy
Ontario has increased the preferential share payable to a spouse on intestacy from $200,000 to $350,000.
A recent amendment to the regulations under the Succession Law Reform Act prescribes the preferential share as being $350,000 for the estate of a person who died on or after March 1, 2021. The preferential share remains at $200,000 for estates of a person who died before March 1, 2021.
The last change to the value of the preferential share was in 1995, when it was increased from $75,000 to $200,000.
Under the Succession Law Reform Act, where a person dies without a will, but with a “spouse” and children, the spouse is entitled to the “preferential share”, and ½ of the balance of the estate if there is one child, or 1/3 of the balance if there is more than one child.
The provision applies to married spouses only, including married but separated spouses. However, other recent proposed amendments to the Succession Law Reform Act may change this. The proposed legislation provides that the intestacy rules that provide for a spouse do NOT apply if “the spouses are separated at the time of the person’s death”. “Separated” is defined as meaning either (i) they lived separate and apart for three years as a result of the breakdown of their marriage; (ii) they entered into an agreement that is a valid separation agreement; (iii) a court made an order settling their affairs arising from the breakdown of the marriage or (iv) a family arbitration award was made settling their affairs. Further, there must have been no reconciliation: they must have been living separate and apart as a result of the breakdown at the time of death.
Cue the litigation.
On October 30, 2020, I blogged on the preferential share. In that blog, I asked whether it was time to reconsider the value of the preferential share. It looks like the time has come.
Have a great weekend.
We have previously blogged on the discussion between Ontario Attorney General, Doug Downey, and the Estates Bar regarding legal policy reform. This discussion occurred on August 6, 2020, and was facilitated by the Ontario Bar Association. Our post focused on virtual witnessing of wills as a result of Covid-19 and considered the possibility of making this provision more permanent.
The focal point of today’s post will be s. 16 of Ontario’s Succession Law Reform Act and whether it should be repealed.
Section 16 provides for the revocation of a will upon marriage. At the August 2020 meeting, many participants were in favour of repealing this provision. Both British Columbia and Alberta have already amended their legislation to repeal this exact provision. Proponents of legislative change associate this provision with the rise in predatory marriages. The devastating consequences resulting from a predatory marriage generally impact the vulnerable elderly and their heirs.
The rationale underlying the provision’s enactment dates back hundreds of years to a time where the father of the bride was required to pay a dowry to the groom. Revocation of a prior will was required in order to protect the bride from any previous obligations laid out in the groom’s will and to ensure a “clean slate.” There are concerns by some that a new spouse might not be protected if a prior will remains valid after marriage. For example, if a valid will is upheld at marriage, a current spouse might not inherit if he/she is not included in that will.
Section 16 is debatably antiquated and historically redundant as there are now additional statutes in place to protect a new spouse in the event of a death, including the Family Law Act. Furthermore, s. 58 of the Succession Law Reform Act allows a spouse of a deceased to claim appropriate and adequate support as a dependant. It is apparent that revoking a will upon marriage is not the only protection available for a subsequent spouse.
With the demographics in our society rapidly changing and the obvious need to protect those most vulnerable, now is as good a time as ever to reconsider the necessity of s. 16.
Thanks for reading!
Suzana Popovic-Montag & Tori Joseph
On November 25, 2020, the beautiful game lost one of its greatest legends, Diego Maradona. The famous Argentine footballer passed away at the young age of 60 years old, leaving behind millions of admirers around the world to mourn his death.
Maradona also left behind many children. In addition to his eight recognized children, there are supposedly at least two others claiming to be his offspring. The net worth of Maradona’s estate remains to be determined, as does the question of whether he made a Will. Nevertheless, should any opportunistic long-lost children succeed in proving paternity, they may have a claim to a share of Maradona’s estate.
In Ontario, a long-lost child could likewise benefit from their parent’s estate. A child has a statutory entitlement to a share of their parent’s estate where the parent dies without a Will. Pursuant to Part II of the Succession law Reform Act, those who have a right to inherit on an intestacy include the surviving spouse and the “issue”, or descendants, of the deceased.  The courts have confirmed that for the purposes of intestate succession, descendants are restricted to blood relatives (with the exception of adopted children, who have the same rights as a biological child). Thus, any purported child seeking an interest in an intestate estate must prove that they are the biological child of the deceased. If an illegitimate child can establish parentage, then they are entitled to share equally in an intestate estate with those born inside of marriage.
In the case of a testate estate, an alleged child of a deceased person may have a right to any bequest made in the deceased’s Will that is based on parentage. For example, a Will may provide for a gift to the testator’s “issue” or “children”. Unless a contrary intention is included in the Will, any person born outside of marriage who successfully proves parentage could be considered a part of the class of “children” or “issue” entitled to the gift.
Those purporting to be a child of the deceased can prove their familial relationship by presenting documentation like an Ontario Birth Certificate from a Vital Statistics Agency. If this documentation is not available or further evidence of kinship is requested by the estate trustee, DNA testing can also be used. Courts have recognized DNA testing as a reliable, efficient, and effective method of establishing parenthood in probate matters. Section 17.2 of the Children’s Law Reform Act and section 105(2) of the Courts of Justice Act grant Ontario courts the jurisdiction to order DNA testing to assist in determining a person’s parentage.
Thanks for reading!
 Joshua Nevett. Maradona: Why the football icon’s inheritance could be messy (December 6, 2020), online: BBC News <https://www.bbc.com/news/world-latin-america-55173630>
 Peters Estate (Re), 2015 ABQB 168 (CanLII), <http://canlii.ca/t/ggmgg>; Child, Youth and Family Services Act 2017, S.O. 2017, c. 14, Sched. 1, s. 217 <https://www.ontario.ca/laws/statute/17c14#BK297>
 Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 17.2 <https://www.ontario.ca/laws/statute/90c12#BK23>; Courts of Justice Act, R.S.O. 1990, c. C.43, s.105(2) <https://www.ontario.ca/laws/statute/90c43#BK146>