Earlier this year, changes to the Succession Law Reform Act, R.S.O. 1990, Chapter S.26 (the “SLRA”) came into effect in Ontario. Will drafting and interpretation have long been a very formal and inflexible process. But, as of January 1, 2022, that is no longer always the case. Some of the changes to the SLRA affected aspects of will drafting and interpretation that were considered long-settled and fundamental. Let’s look at a few of the key changes:
- Marriage No Longer Revokes Existing Wills
- Changes For Separated Spouses
- Remote Execution Option Is Now Permanent
- Substantial Compliance Replaces Strict Compliance
The SLRA is an important piece of legislation in Ontario that governs things like wills and estates. It sets out rules for how a person’s property is distributed if they die without leaving a valid will. It also sets out the requirements for making a valid will, including the witnesses needed when signing it.
Marriage No Longer Revokes Existing Wills
Lawyers who draft wills have long cautioned clients to review their estate plans and existing documents whenever a marriage occurs. Previouslybecause of sections 15(a) and 16 of the SLRA, a person’s present will would be automatically revoked after that person was married (unless their will expressly referred to the upcoming marriage).
This rule was relatively sensible when family structure was generally more straightforward (i.e. nuclear families, remarriages uncommon, etc.). People might have then been expected to want to leave their estate to their new spouse and/or children, and these individuals were probably not mentioned in an older, pre-marriage will. If the existing will was not repealed, a new spouse and children might not inherit what the person may have wished. Additionally, if a person did not have a new will prepared after the marriage, then intestacy rules may have applied. As a result, the estate’s beneficiaries would be decided upon according to the law rather than a person’s wishes and dealing with the estate could be more complex and expensive.
However, we now see that family structures vary significantly. The assumption that people would always intend for their estate to go to a new spouse no longer makes sense. The amendments to the SLRA acknowledge this reality, offering more flexibility in dealing with wills. Now that Ontario has repealed these sections of the SLRA, marriage does not automatically revoke an existing will. For wills signed after January 1, 2022, the will may continue to be valid after the marriage. This also applies to wills that were signed before then but with a marriage that takes place after.
Changes For Separated Spouses
Just as lawyers often advise you to review your estate plans and existing documents when you get married, the end of a marriage requires the same attention. And now, that doesn’t just mean a divorce. Before the January changes in legislation, officially divorcing had specific effects on an ex-spouse’s entitlement in the case of both intestacy and valid wills. For example, a divorced spouse named as an executor under the existing will of their ex-spouse would no longer be appointed to take on that position. Likewise, a divorced spouse named as a beneficiary under the existing will of their ex-spouse would no longer be entitled to their indicated share of the estate. However, a separated spouse would not be excluded from a will unless a divorce had been finalized.
With the January 1 amendments, separated spouses are now, in some cases, treated as if they were divorced, even without a court order or divorce papers. If they meet the specific definition of separated, according to the SLRA, a separated spouse would no longer be appointed as executor or receive a share of the deceased ex-spouse’s estate.
Remote Execution Option Is Now Permanent
One of the most significant changes to the SLRA is the adoption of remote execution of wills — will signings conducted electronically. Prior to 2020, the SLRA had a strict requirement of both witnesses to a will being present with the will-maker as they signed the will. However, in the absence of access to traditional in-person legal services and paper documents during the Covid-19 pandemic, temporary measures were put in place to allow wills and powers of attorney to be executed remotely. These new rules are now permanent and enable a will or other testamentary document to be executed without being physically present in the same room or area as the witnesses to the execution, subject to specific requirements.
The requirements for remotely executing wills are:
- The will-maker and the witnesses must sign at the same time via audio-visual technology; and
- At least one of the witnesses must be a licensed lawyer or a paralegal.
This permanent change offers a more convenient and flexible option for those preparing testamentary documents in Ontario. It is also a relief for many people who may have previously had difficulties executing a will. The option to sign a document with a witness on video conference allows individuals who may have difficulty travelling or are otherwise unable to physically meet with a witness the ability to still execute these critical documents.
Substantial Compliance Replaces Strict Compliance
When dealing with the validity of a will in Ontario, courts were previously required to take the approach of strict compliance. This rule meant that for a will to be valid, it had to comply strictly with all SLRA requirements. When signing or witnessing signatures, errors could mean that the court would not uphold an otherwise valid will. For example, two witnesses are required to sign at the end of a will, and if one of the witnesses did not sign at the end but rather signed elsewhere on the will, a court could find that this was insufficient. Any such defect in a will, even if it was clear that it did not change the testator’sthe person who makes the will intent, could invalidate the entire document, leaving the estate to be administered according to intestacy rules. The court had no discretion to use its best judgment, even if it was clear that no irregularities were made in bad faith and that the testator’s wishes would not be respected without validating the will.
With the amendments of January 1, 2022, the interpretation of wills in Ontario can now follow the approach of substantial compliance. This change gives the courts the ability to take a more flexible view of all circumstances to deem whether a will is valid. The amendment provides an objective basis for determining when there has been substantial compliance with the formal requirements for will drafting and execution. Under substantial compliance, so long as all of the other requirements for drafting and execution were met (i.e., the will is in writing and it sets out the testamentary intentions of the deceased), a court can find the will to be valid. This flexibility will allow unintentional defects to be rectified and the testator’s real intentions to be upheld.
These are just some of the recent changes to the SLRA. Of course, anyone with a will should review their documents regularly, but now this is particularly important. And, if you haven’t yet made your will, this is an excellent time to look into doing so. Even if these changes don’t apply to you, it is still valuable to update your will regularly for you and your business. If you have questions about any of these changes, or you would like to discuss preparing new wills and powers of attorney for yourself or your family, DMC can help. Send us an email or give me a call directly at 416-443-9280 extension 208.