This article was first published by STEP Canada in STEP Ottawa Newsletter, September 2021, Republished with permission.

From the whirlwind of practical changes brought about by the pandemic also came other substantive changes to the Estates world. In this article we will briefly touch on the changes that have already come into effect and the future changes we can expect.

Preferential share (March 1, 2021)

Section 45 of the Succession Law Reform Act ("SLRA") provides that in the case of an intestacy, a surviving spouse is entitled to the "preferential share". From April 1, 1995, Ont. Reg. 54/95 set the preferential share at $200,000. Effective February 16, 2021, Ont. Reg. 121/21 amended Ont. Reg. 54/95, which increased the "preferential share" to $350,000. The effect of this change for the purpose of section 45 of the SLRA is that the amount of the preferential share is now prescribed as, (a) $200,000 for the estate of persons who die before March 1, 2021; and (b) $350,000 for estates of persons who die on or after March 1, 2021. 

Certificate of Appointment Applications: Small Estates (April 1, 2021)

There was nothing comparable in Ontario prior to the Smarter and Stronger Justice Act (2020). Formerly, the court processes for estate administrations were the same for $10,000 estates as they were for $10,000,000 estates. Effective as of April 1, 2021, section 1 (the definition section) of the Estates Act is amended to include the term "small estate". Small estate means an estate that does not exceed the amount prescribed by regulations. Pursuant to Ontario Regulation 110/21, "….the maximum value of a small estate for the purposes of the Estates Act is $150,000".

The effect of the changes allows for an application of a small estate to be filed without a bond, unless there is a minor or incapable beneficiary. The application has simpler application forms, as set out within Ontario Regulation 111/21, forms 74.1A, 74.1B, 74.1C, 74.1D, 74.1E and 74.1F. The application does not require the affidavit of service and no notice of application.

If filing a small estates application it is important to note the following:

  • 30 day waiting period after notice requirements met before application can be filed
  • Limited to specific assets, which are outlined on the certificate
  • If assets are discovered that do not bring value of the estate above $150,000 it necessitates the filing an application for an amended certificate
  • If assets are discovered that bring the value of the estate above $150,000 it will necessitate filing for a "normal" application for certificate of appointment
  • No probate fee benefit to being a "small estate"
  • Same Estate Information Return Obligations as "normal" applications for certificate of appointment

Remote witnessing (Bill 245 – April 7, 2020; May 20, 2021)

Prior to April 7, 2020, section 4(1) of the SLRA governed the execution of Wills.

Section 4(1) subject to sections 5 and 6, a Will is not valid unless,

  1. at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
  2. the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
  3. two or more of the attesting witnesses subscribe the Will in the presence of the testator.

Prior to April 7, 2020, section 10(1) of the Substitute Decisions Act ("SDA") governed the execution of Powers of Attorney.

Section 10(1) – A continuing power of attorney shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness.

Temporary (State of Emergency):

For the duration of the emergency, a requirement under the SLRA that a testator or witnesses be present or in each other's presence for the making or acknowledgment of a signature on a Will or for the subscribing of a Will may be satisfied by means of audio-visual communication technology provided that at least one person who is providing services as a witness is a licensee within the meaning of the Law Society Act at the time of the making, acknowledgment or subscribing.

For the duration of the emergency, a requirement under the SDA that witnesses be present for the execution of a power of attorney may be satisfied by means of audio-visual communication technology provided that at least one person who is providing services as a witness is a licensee within the meaning of the Law Society Act at the time of the execution.

Current: per Bill 245, Accelerating Access to Justice Act, 2021

Effective April 19, 2021, Bill 245, Accelerating Access to Justice Act, 2021, made all temporary measures which where in place as of April 7, 2020 for the signing of Wills and Powers of Attorney, and signing of Wills and Powers of Attorney in counterpart (April 21, 2020) permanent, to have retroactive effect back to April 7, 2020.

Effective May 20, 2021, the signatures of witnesses must be made when the virtual witnessing occurs and not at a later date, "contemporaneous" probably meaning that remote signings can only be in counterpart.

Current: Strict compliance regime – Will signing formality

Currently there is a strict compliance regime in place for the execution of Wills under the SLRA. The SLRA under s. 4(1) indicates subject to sections 5 and 6, a Will is not valid unless,

  1. at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
  2. the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
  3. two or more of the attesting witnesses subscribe the Will in the presence of the testator.

Future: Substantial compliance regime (January 1, 2022)

A substantial compliance regime will come into effect on January 1, 2022.

"21.1(1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a Will of the Deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the Will of the deceased, or as the revocation, altercation or revival of the will of the deceased, as if it has been properly executed or made".

No comparable provisions have been added to the SDA regarding Powers of Attorney.

Effect of Marriage on a Will (Bill 245 – January 1, 2022)

Currently under the SLRA, section 15 a Will or part of a Will is revoked …. By, (a) marriage subject to section 16. Effective January 1, 2022, sections 15(a) and 16 of the SLRA are repealed.

Effect of Divorce or Separation on a Will (Bill 245 – January 1, 2022)

Currently under section 17(2) of the SLRA, except when a contrary intention appears by the Will, where, after the testator makes a Will, his or her marriage is terminated by a judgment absolute of divorce or is declared a nullity, (a) a devise or bequest of a beneficial interest in property to his or her former spouse; (b) an appointment of his or her former spouse as executor or trustee; and (c) the conferring of a general or special power of appointment on his or her former spouse, are revoked and the Will shall be construed as if the former spouse had predeceased the testator.

As of January 1, 2022, section 17(2) of the SLRA is amended to add other specified instances of spousal separation between married spouses that would have the same result, but as of the testator's death. Subsection (2) applies, with necessary modifications, on the death of the testator, if the spouses are separated at the time of the testator's death as determined.

Effect of Divorce or Separation on an Intestacy (Bill 245 – January 1, 2022)

As of January 1, 2022, similar applications in the case of the rules governing intestacy. Part II of the SLRA is amended by adding the following section:

"43.1(1) Any provision in this Part that provides for the entitlement of a person's spouse to any of the person's property foes not apply with respect to the spouse if the spouses are separated at the time of the person's death, as determined under subsection (2)."

As of January 1, 2022, a companion amendment, section 6 of the Family Law Act is amended by adding the following subsection in relation to spousal elections in the case of death:

"(21) If section 43.1 of the Succession Law Reform Act provides that a surviving spouse has no entitlement to the deceased spouse's property under Part II of that Act, this section applies as if the surviving spouse's entitlement under that Part has a value of $0."

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