| Sursa dumneavoastra de Estates si Real Estate Law - EXCITING CHANGES TO WILLS & ESTATES LAW|
I know COVID19 is difficult for many of us and all the restrictions can sometimes be hard to accept. But like my grandma used to say: “in tot raul este un bine”, loosely translated as “there is light in every darkness”. COVID19 has had a tremendous positive impact on the way law is practiced in Ontario and it literally brought the practice into the 21st Century. There is now heavier reliance on technology & the internet and the government has been busy making and proposing exciting updates to the law.
One such update involves the administration of “small estates”, and the change in law is effective starting April 1, 2021. A “small estate” is an estate with an aggregate asset value as of the date of death of less than $150,000. Given that estate administration can be a cumbersome, time consuming and expensive process, in an effort to make it easier for Ontario families to administer small estates, the legislation waives the requirement of a bond and permits a simplified probate procedure.
The new procedure includes a simpler application form, with less supporting documents. The court will then issue a “Small Estate Certificate” with the Estate Trustee's authority limited to the estate assets specifically listed in the application.
Furthermore, under the current Estates Act, many circumstances require filing of a bond – two examples are (1) an executor who lives outside of Ontario or outside of a Commonwealth country or (2) an estate where the deceased had no will being two examples. The purpose of a bond is to protect the interests of creditors and beneficiaries of the estate and guard against the executor’s possible mismanagement of the estate assets. The filing of a bond will not be required for small estates if there is no minor or incapable beneficiary.
Other exciting proposed changes to wills and estates law come in the form of Bill 245, Accelerating Access to Justice Act, 2021 (the Bill). The Bill is in its third reading and is waiting to be passed into law. Here are some of the proposed changes:
• The Bill proposes for the remote witnessing of wills through the means of audio-visual communication technology – this was permitted by the Emergency Management and Civil Protection Act, as a temporary measure to respond to the COVID-19 pandemic, however the Bill proposes that this becomes permanent; remote witnessing does carry significant risks, but if done properly, it will allow individuals to sign wills and powers of attorney from home;
• The Bill proposes to repeal section 16 of the Succession Law Reform Act (the “Act”) which provides that a will is revoked by the marriage (with exceptions);
• The Bill proposes to amend section 17 of the Act which currently provides that if the testator and their spouse legally divorce or nullify their marriage, the testator’s will shall be interpreted as if the former spouse had predeceased the testator. This essentially removes any testamentary gifts to the former spouse or any executorship appointments, just in case the deceased has never updated their will since the divorce/nullity. The Bill proposes that this section be updated to capture the situation where spouses are separated. This is a highly important proposed change, as separated spouses currently have the same rights as married spouses under the Act;
• Similarly, if a person dies without a will and they are separated but not legally divorced, spousal entitlements under intestate law will no longer apply;
• A new section will be added to give the Superior Court of Justice authority to validate a document or writing that was not properly executed or made under the Act, under certain conditions. This is again a very exciting proposal, since wills which are not properly executed (i.e. are not signed properly by either the testator or the witnesses, etc.) are currently not considered valid even though they capture the testator’s intentions with respect to their property.
While these changes are exciting and many lawyers might want to jump at the opportunity to apply them, it is important to remember that these laws / proposed laws have not yet been interpreted by courts and even though at face value they seem straight forward, the lawyer has to evaluate each client’s individual case to determine if any of the above changes present any risk(s) for each client’s particular fact scenario.
If you have any questions about this topic, I would love to help!
PLEASE NOTE THAT THE CONTENT OF THIS BLOG IS MERELY FOR INFORMATION PURPOSES AND DOES NOT CONSTITUTE LEGAL ADVICE.
Raluca M. Soica, BBA, CPA, CMA, JD
Barrister & Solicitor
Raluca M. Soica 4/12/2021