All change in Ontario

On 19 April 2021, Bill 245, Accelerating Access to Justice Act, 2021 (the 2021 Act)¹ received royal assent. Introduced by the Ontario government with the aim of modernising legal processes and improving access to justice for Ontarians, the 2021 Act makes significant amendments to a number of provincial acts, including the Succession Law Reform Act (the 1990 Act)[2 and the Substitute Decisions Act, 1992 (the 1992 Act).³

Remote witnessing of wills and POAs now permanent

At the outset of the pandemic, the Ontario government passed an emergency order, Ontario Regulation 129/20 (the Regulation), to allow for the remote witnessing of wills and powers of attorney (POAs). The introduction of the legislation allowed the public to execute their wills and POAs remotely using audiovisual communication technology. Under the emergency order, two practices developed in Ontario for the execution of wills and POAs using the remote witnessing option:

• While on a video call with all parties, the testator/grantor and the witnesses each sign their own identical copies of the documents in counterpart, which together constitutes the will or POA.
• While on a video call with all parties, the testator/grantor signs the document. The document is then delivered to the first witness. On a second video call with all parties, the first witness signs the document. If the second witness is not present at the same physical place, the document is then delivered to the second witness and a third video call is held with all parties for signature by the second witness (the Circulation Method).

While the 2021 Act codifies the ability for Ontarians to execute their wills and POAs remotely, it also eliminates the use of the Circulation Method for any documents executed after 20 May 2021, when the Regulation expired. In this regard, the requirements for a valid remote witnessing of a will or POA under the 2021 Act are as follows:

• at least one of the witnesses must be a licensee (paralegal or lawyer) of the Law Society of Ontario;
• the ‘audiovisual communication technology’ used must enable the testator/grantor and witnesses to see, hear and communicate with one another in real time;
• the testator/grantor and witnesses must sign the documents contemporaneously;
• the counterpart copies of the will or POA must be complete and identical (however, minor, non‑substantive differences in format or layout between the copies are of no consequence); and
• any further requirements specified by the regulations must be met.

The permanent implementation of remote witnessing presents challenges for estate‑planning solicitors and opportunities for estate litigators. Some of the rationales that wills and POAs be executed in the physical presence of witnesses are to prevent fraud and to safeguard against undue influence, suspicious circumstances and testamentary incapacity. Witnessing documents in the electronic presence of witnesses may make it more difficult for practitioners to make such assessments. Add to this logistical issues such as accessibility of reliable internet connections, lack of familiarity with audiovisual tools such as Zoom and cooperating with clients who are unable to effectively communicate using audiovisual communication tools.

When witnessing estate‑planning documents remotely, the need to take additional precautions is paramount. Such precautions may include:

• coordinating with the testators/grantors in advance of the virtual meeting to ensure that they are able to navigate the virtual platform being used;
• asking probing questions and reviewing the documents with the testators/grantors at the virtual meeting to further ascertain capacity, confirm the contents of the document and assess whether any suspicious circumstances are present;
• having the testators/grantors move the camera around to show the room to ensure there is no one else present; and
• taking detailed notes as to what occurred and what was observed during the virtual meeting.

Not all Canadian provinces have implemented similar legislation. British Columbia and Saskatchewan now have legislation permanently permitting remote witnessing of wills (and, in Saskatchewan, of POAs), while many have allowed remote witnessing on a temporary basis under emergency legislation or ministerial order.⁴ Care must be taken when clients with property in other jurisdictions are executing wills and/or POAs that are to take effect across provincial or international borders.

Ontario courts can now validate wills

The 2021 Act gives the Ontario Superior Court of Justice the authority to make an order validating a will (or other testamentary document) that was not properly executed under the 1990 Act, if it is satisfied that such document reflects the deceased’s testamentary intentions.

The 2021 Act specifically excludes electronic testamentary documents from the scope of such power; Ontario courts are not authorised to validate testamentary documents with electronic signatures.

This provision takes effect on a day to be proclaimed by the Lieutenant Governor on or after 1 January 2022 and where the deceased died on or after that date.

Wills are no longer revoked by marriage

The 2021 Act revokes ss.15(a) and 16 of the 1990 Act, which together provided that a will was automatically revoked by the testator’s subsequent marriage (except for certain cases as set out in the 1990 Act). Although the 2021 Act has received royal assent, the provisions pertaining to the repeal of ss.15(a) and s.16 of the 1990 Act only come into force on a date to be proclaimed by the Lieutenant Governor, provided that such date shall not be earlier than 1 January 2022. This change brings Ontario into line with Alberta, British Columbia and Saskatchewan.⁵ In today’s mobile world, it is important for couples to be made aware of the differing (and evolving) rules. Although this change is primarily aimed at curbing the effects of ‘predatory marriages’, it also results in the onus falling on a married spouse who is not adequately provided for in a will prepared before marriage to bring a claim against the estate for support and/or equalisation.⁶

Separated spouses now treated similarly to divorced spouses

Subsection 17(2) of the 1990 Act currently stipulates that, absent a contrary intention in the will, where a testator’s marriage is terminated after the date of the testator’s will, bequests to the testator’s former spouse, the appointment of such former spouse as executor or trustee and the conferring of a general or special power of appointment on such former spouse in the will are revoked and that the will is to be construed as if the former spouse had predeceased the testator.

The 2021 Act extends such subsection to situations where, at the time of the testator’s death, the testator and the testator’s spouse were separated but not divorced. To this end, the 2021 Act provides that, for such purposes, a surviving spouse is considered to be separated from the testator at the time of the testator’s death if:

• before the testator’s death:
  • they lived separate and apart for three years as a result of the breakdown of their marriage;
  • they entered into a valid separation agreement under the Ontario Family Law Act;
  • a court made an order regarding their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; or
  • a family arbitration award was made under the Arbitration Act, 1991, with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and
• at the time of the testator’s death, they were living separate and apart as a result of the breakdown of their marriage.

The 2021 Act also eliminates spousal entitlements on intestacy of separated surviving spouses under the 1990 Act if the deceased and the deceased’s surviving spouse meet the definition of separated spouses, which is similar to the above definition.

Although such changes would better reflect the deceased’s intentions in situations where the deceased passed away before divorce proceedings could be finalised, they may also result in new difficulties, such as disputes over the factual finding of when and whether the deceased and the spouse separated.⁷ These amendments come into force on or after 1 January 2022 and will be applicable with respect to separations that occur on or after such day; the spouses must have begun to live separate and apart as a result of the breakdown of their marriage on or after such day (and continue to do so for the next three years).

Conclusion

The changes implemented by the 2021 Act are significant and better reflect the reality of modern Canadian families. It is incumbent on advisors in Ontario with clients residing in Ontario or who have assets in the province to familiarise themselves with the changes in order to provide proper counsel to their clients.⁸