Update on Improving Access to Justice in Estate Matters

By Merovitz Potechin on Thursday May 6, 2021.

Updated post – June 29, 2021

Effective January 1, 2022: Changes Improving Access to Justice in Estate Matters

Further to our post on March 23, 2021, outlining the steps the Ontario government was taking to improve access to justice in estate matters, Bill 245, known as the Accelerating Access to Justice Act, 2021, received royal assent on April 19, 2021.

The changes are outlined in Schedule 8 and 9 of Bill 245, and include the following changes to the Substitute Decisions Act (“SDA”) and Succession Law Reform Act (“SLRA”):

1.  The SDA and SLRA are amended to provide for the remote witnessing of wills and powers of attorney through the means of audio-visual communication technology for wills and powers of attorney made on and after April 7, 2020.
2. Section 16 of the SLRA which provides that a will is revoked by the marriage of the testator except in specified circumstances, is repealed.
3. Section 17 of the SLRA provides that if the marriage of the testator and the testator’s spouse is terminated or declared a nullity, the testator’s will shall be construed as if the former spouse had predeceased the testator. The section 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.
4. A new section 21.1 is added to give the Superior Court of Justice authority to, on application, make an order validating a document or writing that was not properly executed or made under the SLRA if the Court is satisfied that the document or writing sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased.
5. A new section 43.1 is added to provide that the spousal entitlements under Part II of the SLRA if a person dies intestate in respect of any or all property do not apply if the person and the spouse are separated, as determined under the section, at the time of the person’s death. A complementary amendment is made to section 6 of the Family Law Act.

We are very excited about these changes and the potential for them to increase access to justice for Ontarians. The only change that is currently in effect is with respect to the remote witnessing of wills and powers of attorney. The other changes outlined above will not come into force until the Lieutenant Governor proclaims it so.

We will continue watching the progression and reforms to SDA and SLRA and will provide an update on how the government plans to bring the Accelerating Access to Justice Act, 2021 into force. If you have questions about remote witnessing of powers of attorney and wills, will revocation upon marriage, or how the impact of a previous or current marriage may impact your estate plan, please contact our Wills, Trusts and Estate Team at Merovitz Potechin LLP.