2021 has brought significant changes to Wills and Estates law in Ontario and 2022 is shaping up to be just as momentous. In this PooranLaw Insights article, we recap the changes.
Changes that came into effect during 2021:
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- If you die without a will, your spouse will likely get a larger share of your estate. Since 1995, if you died without a will (“intestate”), your surviving spouse was entitled to receive the first $200,000 from your estate (called the “preferential share”) and the remainder of your estate would then be divided between your spouse and children. Effective March 1, 2021, the Ontario government increased the preferential share to $350,000. Consequently, the surviving spouse of someone who passes away intestate on or after March 1, 2021 will receive the increased amount of the first $350,000 as the preferential share, while the surviving spouses of those who passed away before March 1, 2021 continue to get the lower amount of the first $200,000 as the preferential share.
- Virtual signings of wills and powers of attorney are a go. Effective April 19, 2021, the Government has permanently allowed wills and powers of attorney documents to be signed virtually. This makes estate planning easier, and more accessible.
- Different procedure for the Certificate of Appointment Applications for small estates. Effective April 1, 2021, a Certificate of Appointment application of an estate worth less than $150,000 can be filed without a bond, unless there is a minor or beneficiary deemed incapable. The application has simpler application forms and does not require the affidavit of service nor the notice of application. This new process is meant to accelerate probate timing on smaller estate matters and providing a more cost-effective option.
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Changes that will come into effect on January 1, 2022:
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- Revocation of a will after marriage is a thing of the past. Marriage will no longer automatically revoke a Will. This protects vulnerable people from a predatory partner who would marry them simply to gain access to their estate. It does not, however, affect the rights of common-law spouses.
- Separation will revoke gifts to a separated spouse in a will. If you are separated from your spouse when you pass away, any gifts left in your will for your spouse will be revoked, unless your will says otherwise. If your separated spouse is appointed as an executor or trustee in your Will, such appointments will similarly be revoked. This is more aligned with the wishes of those who separate from their spouses without getting a formal divorce.
- Separated spouses will not inherit under intestacy rules. If you pass away without a will, your separated spouse will no longer inherit from your estate under estate law.
- New compliance regime for recognizing the validity of wills. The new substantial compliance regime will provide the Superior Court of Justice with the authority to recognize as valid a document or writing that was not properly executed or made, if the Court is satisfied that the document or writing sets out the testamentary intentions of a deceased person or an intention of a deceased person to revoke, alter, or revive a will of the deceased person. These changes will allow for the intentions of those who may not be aware of the legal requirements for a valid will to be maintained and respected.
- The rules that govern estate administration are being amended. Most of the changes update the names of the estate forms in the rules, primarily in rules 74 and 74.1. Moreover, all initial applications to appoint an estate trustee will be governed by one rule – 74.04 – regardless of whether the deceased left behind a will. Rule 74.05, which currently applies to applications without a will, will then be revoked.
- New estate forms will be required for Certificate of Appointment applications. As of January 4, 2022, all applicants will use one form called 74A. This form replaces six forms, regardless of if it is an individual application or corporation applying or if there is a will or not, to apply to be appointed as an estate trustee. An additional new form, 74J, will also be only one form for applying to be appointed as an estate trustee after proceedings have already been started. The new estate forms will be more streamlined. The content of 43 estate court forms will be consolidated into eight new estate court forms. Amendments will be made to 15 other estate court forms, with a simpler format and an improved guiding language. This should make the process much more accessible to the general public.
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PooranLaw will continue to monitor the ongoing legal developments related to wills and estate law. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
