There have recently been several changes implemented and proposed to legislation concerning Wills and Estates in Ontario.
Definition of a Small Estate
The biggest change is in the definition of what constitutes a Small Estate. As of April 1, a “Small Estate” will be one worth up to $150,000.00, replacing the prior $50,000.00 limit. An Applicant seeking to probate a Small Estate can utilize a simplified probate procedure, exempt from the requirement for certain supporting documents to be filed (e.g., a commissioned Affidavit of Service), and typically exempt from the requirement to post a bond (unless there are overriding circumstances, such as incapable or minor beneficiaries.)
With this revised definition of a Small Estates come a pseudo-probate document, the “Small Estates Certificate” (“Certificate”) which enables the appointed person to receive and manage the assets of the Estate listed in the Small Estate Certificate Application. Unlike a conventional Certificate of Appointment of Estate Trustee (“CAET”), which grants the Estate Trustee the authority to manage all of the deceased’s assets, this Certificate is only good for the assets for which it was granted. If an estate turns out to be in excess of the $150,000 limit, the Estate Trustee will then have to apply for a CAET to manage any other assets, and the Small Estate Certificate is revoked on the issuance of a CAET for the same estate.
In the proposed changes yet to be implemented, the Accelerating Access to Justice Act, 2021 (“AAJA”) was introduced by the Ontario legislature on February 16, 2021. The AAJA contains several provisions which would impact Estates in Ontario, particularly with respect to probate.
One set of changes of the AAJA would amend the Substitute Decisions Act (the “SDA”) confirms the temporary measures implement to deal with the COVID-19 pandemic. This measure allows for remote witnessing of Powers of Attorney (“POAs”), where one witness is a licensee of the Law Society, via audio-visual communication technology, for POAs entered into on or after April 7, 2020. Also proposed is an amendment to the SDA with respect to the Public Guardian and Trustee’s entitlement to access records of an alleged-incapable person in the context of a required investigation under the SDA.
Another proposed change brought by the AAJA would amend the Succession Law Reform Act (“SLRA”) to allow for remote witnessing of Wills, in the same manner as POAs.
Proposed Changes to Marriage, Separation, and Wills
Significant changes have been proposed for the way in which marriages are treated with respect to Wills. Where a marriage ends in divorce or is nullified, currently any provisions in the testator’s Will respecting the former spouse are revoked and the testator’s Will is read as though the former spouse had predeceased the testator. The proposed change would apply this same interpretation to cases of still-legally-married spouses who are separated at the time of the testator’s death. Further, separated spouses would no longer enjoy any entitlement under the Intestate Succession provisions of the SLRA. Additionally, Wills would not be revoked by marriage, as they currently are (to the surprise of many testators)!
Finally, the same set of proposed changes would alter Ontario’s strict compliance regime with regards to the preparation and execution of Wills, and make it more of a substantial compliance regime like British Columbia. The Court would have jurisdiction to validate a Will, or the revocation of a Will, and “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” where the purported 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.” This change could be transformative to the practice as it would open up a host of new documents to interpretation, potentially increase the number of Applications made to obtain such an interpretation, and likely increase the number of challenges to propounded Wills and revocations.
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