The restrictions created by the pandemic necessitated a shift in how wills and powers of attorney were executed, eventually resulting in permanent changes, including virtual witnessing. In addition to the practical changes to this area of law, there are also some substantive changes that came into effect in July which will have a significant impact on wills and estates, especially as they pertain to couples, going forward. Below, we will outline key changes to the Succession Law Reform Act and their potential impact. If you have a will in place, you may need to consider updating it to take these changes into account.
Spousal Entitlement Increases Under Intestancy
When a person dies without a valid will in place, they are said to have died ‘intestate. When this happens, the distribution of the estate’s assets is done in accordance with succession laws under the Succession Law Reform Act. In cases where the deceased had a spouse and no children, the distribution is simple in that everything goes to the spouse. However, if the deceased did have children, the distribution of the estate becomes more complicated. Rather than dividing the estate equally, the law required that the spouse receive a preferential share of the estate amounting to $200,000 before the remainder was divided in equal shares among all of the deceased’s heirs (including the spouse).
The changes have increased the preferential share to $350,000, meaning that this amount will go to the spouse before the remainder is distributed. However, it should be noted that this applies only to married spouses. Common-law partners are not considered to be “spouses” under the Act.
This change came into effect in March of this year.
Wills Will No Longer be Revoked Automatically After Marriage
Currently, if a testator has a will in place and then becomes married, the marriage has the effect of revoking the will automatically. The reason for this was to protect the spouse, who would likely not have been contemplated when the original will was drafted, and therefore may not have been designated as a beneficiary. The new marriage took precedence, with the thinking being that even if the testator were to die before creating a new will, the spouse would then benefit under the laws of succession for an intestacy, as described above.
However, there has been a growing concern around predatory marriages, where a person marries someone with the goal of inheriting a portion of their estate. This can be a particular concern when it comes to older people, especially those who may be vulnerable due to diminished capacity. The changes, which will take effect on January 1, 2022, will allow existing wills to stand, even after marriage.
For this reason, anyone who marries after they have a will in place should be sure to update their will as soon as possible to include their new spouse. If they don’t the spouse would likely raise a dependent’s relief claim against the estate after the testator’s death, creating a need for the estate trustees and the beneficiaries to hash things out in court.
Separated Spouses Will Be Treated as if They Are Divorced
Another change impacting spouses applies to married couples who are separated but not yet divorced. Under the current law, provisions in a will that leave a portion of the estate to the deceased’s spouse will not stand if the couple divorced after the will was executed. In these cases, the surviving “spouse” is deemed to have predeceased the testator, and so the proceeds of the estate will go to the remaining beneficiaries instead.
The amendments to the Succession Law Reform Act will see separated spouses treated in a similar manner. If a couple is deemed to be separated in accordance with the provisions in the Act, the surviving spouse will be treated as though they predeceased the testator, and will be skipped over in the distribution of the estate, unless the will specifically directs otherwise. This change, like the one above, will come into effect on January 1, 2022.
Courts Will Be Empowered to Correct Minor Errors in Order to Validate a Will
Wills are sometimes executed imperfectly, with a missing witness signature, or another minor error. Currently, a simple mistake can have the effect of invalidating the entire document, leading to a much more complex estate administration process. However, as of January 1, 2022, the Ontario Superior Court of Justice will have the power to correct minor errors in order to validate an otherwise proper will. The new section reads as follows:
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, alteration or revival of the will of the deceased, as if it had been properly executed or made.
Contact Experienced Ottawa and Eastern Ontario Estate Lawyers at Tierney Stauffer LLP
At Tierney Stauffer LLP, our experienced lawyers are committed to helping you navigate the complexities of the estate planning process. Our offices in Ottawa, Cornwall, Kingston and Arnprior serve clients in all aspects of estate planning and estate administration. We prepare wills, powers of attorney and administer trusts for our clients. If you are considering writing a will or planning your estate, setting up a trust, or find yourself in a dispute over an estate, we can help.
Our lawyers provide innovative guidance throughout the estate planning and administration processes, and representation in litigation in the event of an estate dispute. Call us at 1-888-799-8057 or contact us online to set up a consultation.