Ontario’s attorney general has introduced a bill that would significantly reform estate law in the province.
Bill 245, which passed first reading on Tuesday, is an omnibus bill that includes proposed changes to the acts governing wills, powers of attorney and intestacy.
If passed, the bill would permit permanent virtual witnessing of wills and powers of attorney — currently allowed on a temporary basis in the province. At least one witness would have to be a licensed lawyer or paralegal.
The bill also addresses issues surrounding marriage and divorce. Bill 245 would repeal the existing provision in the Succession Law Reform Act that automatically revokes a will upon marriage, and would eliminate property rights on death when spouses have separated but not divorced — whether the deceased dies with or without a will.
According to a blog post written by Krystyne Rusek, an estate lawyer with Pallett Valo LLP in Mississauga, Ont., “the most significant change proposed in the bill is the granting of the power to validate wills that have not been properly executed.” Currently, any will that doesn’t meet all legal requirements is considered invalid, and the deceased is considered intestate, under what is known as a “strict compliance” regime.
The bill would move Ontario to a “substantial compliance” regime like most other common-law provinces, meaning that a judge could deem a will valid if they feel the will accurately reflects the intentions of the deceased.
Bill 245’s introduction follows a stakeholder consultation that began in August 2020 and an announcement last week that Ontario will begin defining “small estates” as those worth up to $150,000.
If the Bill 245 reforms pass successfully, they and the small estates change would substantially address the questions raised in the August consultation. However, as Rusek noted in her post, the bill would not permit electronic wills; nor would it extend property rights to common-law spouses.
Nonetheless, Rusek praised the proposals in the bill, writing that the “alacrity” demonstrated by the attorney general “reflects the general desire to bring estates law into the twenty-first century in a safe and regulated manner.”
Electronic wills and virtual will witnessing have been permitted on a permanent basis in British Columbia since August 2020, when Bill 21 received royal assent. Several other provinces allow virtual will witnessing on a temporary basis in response to Covid-19.
With files from Rudy Mezzetta