Estate Law Changes in 2022: What It Means For You
Disclaimer: This article on estate law in Ontario is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive
We have spoken before about how important estate planning is, whether it is the documents that you need besides a will, or how to protect the important people in your life.
However, estate planning is not a “set it and forget it” type of process. If there is one thing that we know, it’s that change is a constant. Think about your life in the past five years. Perhaps your family has grown or changed. Maybe you now own a business or a home. Perhaps you appointed someone for an important role in your estate, such as your executor, but they are no longer the right fit.
There are also recent changes to the laws that regulate estates in Ontario. In this article, we will outline what those changes are and how they may affect your estate planning. Of course, if you want to discuss your specific needs, please book a call. Our team is always happy to help.
Estate Law in Ontario – The Background
In April 2021, the Accelerating Access to Justice Act, 2021 came into law in Ontario. Many of those changes came into effect on January 1, 2022. They apply to any wills where the deceased dies after that date.
Wills & Marriage
Up until now, a previous will would be revoked when you got married unless specific provisions were included to the contrary.
That entire section was repealed (or removed).
Separated Spouses
We see this happen from time to time. A couple separates but never formally divorces. Decades pass, estate documents are never updated, and one of the spouses passes away. The surviving spouse, despite being separated, can still inherit part of the former spouse’s estate.
While it makes sense that our wishes would change after a relationship ends, many do not appreciate the need to update their will.
Separated Spouses – Before 2022
Previously, gifts, appointments, and rights to inherit under intestacy laws (for those who died without a will) were all revoked when a couple got divorced. The law would treat the situation as if the ex-spouse had previously died. They could not act as the executor or inherit anything under that will.
Separated Spouses – Changes in 2022
That now extends to separated spouses. Those gifts and rights are revoked once the spouse meets the definition of “separated”. This applies equally if there was a will or if the person died intestate (or without a will).
Notice how “separated” is defined:
“A spouse is considered to be separated from the testator at the time of the testator’s death for the purposes of subsection (3), if,
(a) before the testator’s death,
(i) they lived separate and apart as a result of the breakdown of their marriage for a period of three years, if the period immediately preceded the death,
(ii) they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,
(iii) a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or
(iv) 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
(b) at the time of the testator’s death, they were living separate and apart as a result of the breakdown of their marriage. 2021, c. 4, Sched. 9, s. 4 (2).
Succession Law Reform Act
If you are not sure if you and your spouse are separated, it’s best to speak to us about your specific situation.
What about common law spouses?
The law for common law spouses’ estates has not changed. The rules discussed above only apply to married spouses. This is one area where Ontario differs from other provinces like Alberta or British Columbia.
New substantial compliance rule
Ontario used to follow a “strict compliance” rule. This meant that there was no flexibility – if a will did not meet a technical requirement, it was not deemed a valid will. You can only imagine the grave consequences for families when small errors resulted in significant consequences!
Now, a judge can find a will to be valid there is “substantial compliance”. A judge may be satisfied that the document “sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased”. On that basis, the court may deem it as valid and fully effective.
It’s important to note that this new rule specifically excludes electronic wills. It also does not apply to other estate documents, such as Power of Attorneys.
Looking to The Future – Estate Law in Ontario
These laws are very new in Ontario. Therefore, there will be litigation over time where the courts will interpret the law. For example, how far does the concept of “substantial compliance” reach? How will Ontario courts compare to other provinces that have had these laws in place for years?
What about your estate planning?
Regardless of how the law changes, it’s always a good idea to review your will on a regular basis to ensure that it still reflects your wishes. If you have any questions about these changes and how they may impact you, or about your estate planning in general, please don’t hesitate to contact our office for a consultation. You can book a call here.