Major Legislative Changes Made to Ontario’s Succession Law Reform Act

• 
  Jennifer Butkus
  Lawyer

On February 26, 2021, major legislative changes to Ontario’s Succession Law Reform Act (SLRA) were introduced in Bill 245, referred to as the Accelerating Access to Justice Act, 2021.  Although the Bill received Royal Assent on April 19, 2021, many of the changes did not come into effect right away.

Here is an overview of additional changes to estate law that came into effect on January 1, 2022:

1. Marriage no Longer Revokes a Will

Currently, sections 15(1) and 16 of the SLRA provide that wills are revoked by the subsequent marriage of a testator except in certain limited circumstances. 

As Of January 1, 2022, those sections will now be revoked and marriage will no longer automatically revoke a will.  These changes are a welcome update to estate law, as they will now offer protection against the unintentional revocation of a will which could result in inadvertent and undesirable outcomes in the distribution of an estate.

2. New Treatment for Separated Spouses

Currently, section 17(2) of the SLRA provides that, except where a contrary intention appears in the will, if a testator has made a will and subsequently divorced, the will shall be construed as if the former spouse had predeceased the testator.  Certain provisions mentioning the former spouse are automatically revoked, including any bequests of beneficial interest in property to the former spouse, and the appointment of the former spouse as the estate trustee/executor.

As of January 1, 2022, a separated spouse will be treated in the same fashion.  This update will have significant impact on those couples who have been long separated but have never finalized their divorce or updated their estate plan.  A word of warning, however: not all separated spouses will necessarily benefit from this provision.  A spouse will only be considered separated for the purposes of this legislation in the following circumstances:

A. the spouses were living separate and apart as a result of the breakdown of their marriage; AND

B.  any of the following four events occurred:

• i) the spouses lived separate and apart as a result of the breakdown for a period of 3 years (beginning on or after January 1, 2022) if the period immediately preceded death;
• ii) on or after January 1, 2022, the spouses entered into a valid separation agreement;
• iii) on or after January 1, 2022, a court made an order with respect to their rights and obligations in the settlement of the spouses’ affairs arising from the breakdown of their marriage; or
• iv) on or after January 1, 2022, a family arbitration award was made with respect to their rights and obligations in the settlement of the spouses’ affairs arising from the breakdown of their marriage.

3. Introduction of Substantial Compliance Regime

Currently, a will in Ontario is only valid if it strictly complies with requirements under the SLRA.

As of January 1, 2022, the Ontario Superior Court of Justice will have the authority to make an order validating a will that is found to have “substantially complied” with the usual requirements to make a valid will.

Many other Canadian provinces already have a similar substantial compliance regime by which an otherwise invalid will can be declared to be valid, thereby decreasing the risk that a testator’s intention could be frustrated as a result of a “technical” defect.

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This article was written by Wills, Estates, and Trusts Lawyer Jennifer Butkus.

Please contact a lawyer at McKenzie Lake Lawyers LLP by email or by phone at (519) 672-5666 for assistance planning your estate.