What's New in Ontario's Probate Laws for 2022?

Ontario’s Succession Law Reform Act governs how estates are settled and sets forth guidelines for valid will and for intestate succession rules. There have been some big changes to the Succession Law Reform Act and the Substitute Decisions Act that are important to know. These four changes to the Ontario Succession Laws mainly affect those who are married, separated, or in a common-law relationship.

These changes affect the requirements for making a legal will and how it is carried out after death. Understanding the current requirements is crucial to ensure that documents are in compliance and reflect the estate holder’s true intentions.

The Option to Virtually Witness Wills and POAs Is Now Permanent

Virtually signing wills and power of attorney documents was originally a temporary measure put into place in 2020 due to the COVID-19 pandemic. Wills created on April 7, 2020, or after were subject to these provisions. The new 2022 laws have made this a permanent option for wills and POA documents as long as the following criteria are met:

• At least one of the witnesses involved in the signing process is a licensed lawyer or a paralegal;
• The witness and the testator must sign at the same time;
• The chosen electronic method of communication must allow all parties to interact in real-time to see and hear the proceedings.

Even though the signing of these documents can be conducted virtually, all signatures must be done by hand. Electronic signatures are still not considered valid.

Utilizing an online notary service like https://www.notarypro.ca/ makes it easy for you to have your will virtually notarized.

An Existing Will Can't Be Revoked by Marriage

Another change to probate laws applies to how marriage affects an existing will. Before January 1 of this year, a marriage would revoke the contents of a previously established will. Beginning in 2022, existing wills will still be considered despite a new marriage. These measures are not retroactive and marriages that took place before 2022 are still able to revoke an existing will.

Spouses in Separation Lose Entitlements

Prior to 2022, spouses that were in separation, but not divorced, were still entitled to benefit from an estates' property and financial assets if they were named as a beneficiary, or if the spouse died intestate. This is no longer the case.

The new laws state that beginning in 2022, a separated spouse is not automatically considered to be one of the estate's beneficiaries. Spouses separated for three years or more before a death that occurred after December 31, 2021, or that have a formal separation agreement are treated the same as a divorced couple. This means that the surviving spouse is not entitled to any benefits of the estate, or to act as an appointed trustee. In the case of a spouse dying intestate, the surviving spouse is not entitled to any assets of the estate if they were separated at the time of death.

The beneficiary agreement for registered plans or life insurance policies is not affected under the new probate laws.

Improperly Executed Wills Can Be Validated by the Courts

The final new provision that is covered under the new Ontario probate laws has to do with the court's role in validating a will. The 2022 changes give the Ontario Superior Court of Justice the ability to validate a document, even if it wasn't in strict compliance with regulations required for formal wills and legal writings.

Now, the court can declare the will valid if they are satisfied that the document accurately and completely conveys the deceased's final wishes and last intentions. This is a big departure from previous laws.

Any document that was electronically signed is not affected by these new provisions in the law. Documents that have been signed in this way are still unable to be validated by a court decision.

Navigating the process of creating a will and making adjustments through the years can be stressful and confusing. Want to make sure your will is up to date and covers all of your bases? Get in touch with ClearEstate for a free consultation today.