1. Virtual witnessing of Wills and POAs is now permanent.

Remote signing of wills and powers of attorney (“POAs”) was first introduced as a temporary measure during the original COVID-19 emergency order in 2020. The AAJA makes virtual signing a permanent option and tweaks some of the definitions from the original measures.

As of January 1, 2022, wills may be formally signed and witnessed virtually provided that (1) at least one person who acts as a witness is a lawyer or a paralegal, (2) the testator’s and witnesses’ signatures are made at the same time, and (3) the electronic method of communication used allows participants to see, hear and communicate with one another in real time[1]. It is however important to note that Ontario still requires wet signatures on wills (i.e. with a pen). Electronic signatures on wills have not been approved.

A complementary amendment to the SDA now permanently permits the same virtual witnessing for powers of attorney.[2]

2. Marriage no longer revokes an existing will.

As of January 1, 2022, the AAJA repeals subsection 15(a) and section 16 of the SLRA thereby changing the law so that if someone with an existing will marries, their existing will is not automatically revoked.[3]

3. Separated spouses lose entitlements and appointments.

The AAJA amends section 17 of the SLRA to provide that, if at the time of the testator’s death the testator was separated from his or her spouse, then any gifts to the separated spouse in the will of the testator will be revoked and the will of the testator will be construed as if the separated spouse predeceased the testator (subject to any contrary intentions in the will).[4] This will effectively extend the existing provision to treat separated spouses the same as divorced spouses under section 17 of the SLRA.

The AAJA also provides that the intestacy rules in the SLRA will no longer apply to separated spouses. This means that if a testator had no will and was separated from their spouse at the time of their death, the spousal entitlements provided for under the SLRA will no longer apply.[5]

The definition of ‘separated’ in the AAJA provides for a number of scenarios, but will likely most often apply when, before the testator’s death, the testator and their spouse lived separately for 3 years due to the breakdown of their marriage and in cases where parties have entered into a separation agreement.[6]

4. Improperly signed wills are now treated more flexibly.

Effective January 1, 2022, the Superior Court of Justice is now authorized, on application, to make an order validating a document or writing that was not properly executed in complete compliance with the formal requirements for the execution of wills if the Court is satisfied that the document or writing sets out the testamentary intentions of the deceased or the deceased’s intention to revoke, alter or revive their will.

This is a significant change as previously the court had no discretion in determining whether a  document purporting to be a ‘will’ satisfied the strict legislative requirements to constitute a valid will. Several provinces have already enacted similar legislation and the Ontario courts are likely to look to the decisions of the courts in those provinces when considering the application of this new power.

The AAJA expressly excludes electronically executed documents from the scope of this power.[7] This means that the new authority of the court to validate testamentary documents is not intended to allow the court to declare a document or writing valid if that document or writing bears an electronic signature. Wet signatures are still required on the documents that are submitted for validation.

These beneficial changes are important to note for married, separated and long-term common-law couples alike but proper estate planning advice is still necessary to be sure appropriate provisions have been made for individuals and their family members.  For more information on your estate planning needs please reach out to Lou Alexopoulos at lalexo@sotos.ca, 416.977.5024.

[1] Schedule 9, section 1(2) of the AAJA
[2] Schedule 8 of the AAJA
[3] Schedule 9, section 2 and 3 of the AAJA
[4] Schedule 9, section 4(1) and (2) of the AAJA
[5] Schedule 9. section 6 of the AAJA
[6] Schedule 9, section 4(2) of the AAJA
[7] Schedule 9, section 5 of the AAJA

The post Big Changes to Estate Planning in Ontario Have Arrived appeared first on Sotos LLP.

Pursuant to an emergency order passed by the Lieutenant Governor in Council on April 7, 2020, the Ontario government will permit legal professionals to witness the signing of wills and powers of attorney through the use of audio-visual communication technology such as Skype or Zoom.  The order was passed in response to the coronavirus pandemic and the rules around physical distancing.

In the midst of the global pandemic, lawyers have seen an increase in requests for new or updated wills and powers of attorney.  Similar legislation has been passed in other Canadian provinces, including British Columbia and Quebec.

Compliance with the formal witnessing requirements in Ontario’s Succession Law Reform Act (“SLRA”) has become increasingly difficult as people are physically distanced from each other, particularly for those who are in self-isolation or quarantine.  Vulnerable individuals are especially concerned about the risks associated with in-person meetings.

Pursuant to the SLRA, a will must be signed at its physical end by the will-maker (known as the “testator”) before two witnesses who are present at the same time.  Each of the required witnesses must then sign in the presence of the testator.  Neither witness should be a beneficiary or the legal spouse of a beneficiary as failure to abide by this restriction renders the gift to that beneficiary null and void.

Pursuant to the emergency order, the requirement that the testator and witnesses “be present or in each other’s presence for the making or acknowledgment of a signature on a will” may be satisfied by means of audio-visual conferencing.  The order requires that at least one of the two witnesses be licensed by the Law Society of Ontario as either a lawyer or paralegal.  This requirement is meant to serve as a safeguard to ensure the testator has the requisite degree of mental competence to give instructions for a will, and to ensure the testator has not been subjected to any undue influence or duress.  On April 22, 2020, the emergency order was amended by regulation to specifically permit signature of wills executed virtually by counterpart – that is, the testator may sign and witnesses may subscribe on separate copies of the will, which copies shall together constitute the testator’s will.  Previously, all three signatures had to be on the same document, which necessitated couriering the document from the testator to each of the witnesses.

The emergency order is not retroactive – it is applicable to wills and powers of attorney made on or after April 7, 2020 – and will be in place for the duration of the declared emergency, the coronavirus pandemic.

The legislation does not apply to holograph wills.  A holograph will is a will which is entirely in the testator’s own handwriting, and requires no witnesses or other formalities of execution.  While rarely advisable, the ability to make a holograph will can sometimes be useful in emergency situations.

The emergency order also permits the witnessing of powers of attorney by means of audio-visual conferencing, provided at least one person who is providing services as a witness is a licensed lawyer or paralegal in Ontario.  The order applies to both continuing powers of attorney (governing property), and powers of attorney for personal care.  Donors and witnesses to power of attorney for property or personal care that are executed and witnessed virtually may also sign on separate copies of the power of attorney, in courterpart.

The post Estate Planning in a Global Pandemic – Ontario Permits Virtual Witnessing of Wills appeared first on Sotos LLP.