It’s official! Bill 245 has received Royal Assent in Ontario. With this Bill comes a few notable changes to estate planning law in Ontario.
So what do these changes mean for you? We’re breaking down the changes and everything you need to know about Bill 245.
What Exactly Is Bill 245?
Bill 245 was first tabled in February 2021. This bill passed a variety of changes to the Succession Law Reform Act in Ontario. Most of the changes will come into effect as of January 1st, 2022.
What Are The Changes?
Virtual witnessing is now permanent
During COVID-19, Ontario passed legislation that allowed wills to be witnessed virtually. With Bill 245, virtual witnessing is now a permanent alternative for Ontarians. The option of virtual witnessing makes it significantly easier to have your documents witnessed without needing to gather in person.
Virtual witnessing means you and your two witnesses can get on a video call to witness the signing of wills and power of attorney documents. With virtual witnessing, at least one witness must be a licensed lawyer or paralegal. (They do not need to be an estate lawyer).
Keep in mind this still does NOT mean you can sign your will digitally. You and your witnesses will still need to print your documents and sign them in wet ink. You can either mail around the original copy of your will or you can each sign them in counterpart. This means printing out three separate copies of the will, and stored together they comprise the legal will.
Our partners at Notary Pro are able to help Ontarians with virtual witnessing of their documents.
Marriage no longer revokes a will
As of January 1st, 2022, a will made before marriage will continue to be valid. Previously in Ontario, if you made a will prior to being married, it would be revoked (or invalidated) upon marriage.
However, it is still a good idea to review or update your will when you get married. This way you’re certain it still reflects your current wishes. Willful’s Family plan makes it easy for couples to update their wills together.
Separation eliminates property rights
As of January 1, 2022, under the new legislation, your ex-spouse will no longer have property rights - even if you are not legally divorced. Separation will be treated as if you’re divorced. (Currently, unless you have a separation agreement that states otherwise, your ex-spouse can apply for part of your estate under family law)
Under this new rule, you are considered separated if you’ve been living apart for 3 years, have a valid separation agreement, or a court-ordered separation agreement. With the new changes, Ontario residents who fall under the above separation rules will be able to use Willful to make their wills.
Similarly to marriage, divorce and separation are a great time to review your estate planning documents to make sure they reflect your current wishes.
Courts can save invalid wills
Bill 245 will allow courts to deem a will that is ‘technically invalid’ as legal as of January 1, 2022. For example, if a will was only signed by one witness, the courts wouldn’t necessarily toss out the will. The new rules would allow the courts to find ‘testamentary intention’ and declare the will valid. This is called “substantial compliance” and is already allowed in most other Canadian provinces.
This legislation will help reduce the number of wills that default to intestacy (dying without a will) rules due to technical errors. That being said, it’s still in your best interest to ensure your will meets all the legal requirements.
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