Proper estate planning is a critical component of taking care of your family and ensuring that your final wishes are known and can be carried out. Recently, however, there have been some significant changes and proposed changes to Ontario estate legislation that you should know about.
Definition of a small estate
Likely the most significant change that has been made in recent months is the definition of what exactly qualifies as a small estate. Until recently, a small estate was defined as one that had a value of $50,000 or less. That limit has been bumped up to $150,000 as of April 1st of this year.
This means that an applicant seeking probate on a small estate may use a simplified process or “Small Estates Certificate,” which allows the appointed person to manage the estate assets for which they are granted.
A proposed change to the Accelerating Access to Justice, 2021 (AAJA) was introduced in February 2021 can impact Ontario estate legislation in regards to probate.
The change would amend the Substitute Decisions Act (SDA) and make permanent the temporary measures taken during the COVID-19 pandemic and allow for virtual Power of Attorney (POA) witnessing via audio-visual technology provided that one of the witnesses is licensed by the Law Society.
Another amendment that has been proposed is to the Succession Law Reform Act (SLRA), which would allow for virtual witnessing to wills in the same way that there would be virtual witnessing for POAs.
Proposed changes regarding marriage, separation, and wills
There have been many changes proposed for how marriage will be treated in estate legislation. Currently, when there is a divorce or when a marriage is nullified, any provisions in the will regarding the former spouse are revoked as if that spouse had predeceased the testator.
With the proposed change, this same rule would apply to spouses who are separated but not divorced. Additionally, separated spouses would no longer have any automatic entitlements under intestate succession, nor would wills be revoked by marriage as they currently are (a fact which comes to the surprise of many individuals!).
Finally, there are proposed changes that would amend the compliance regime of Ontario to make it look more like that of British Columbia as it pertains to the preparation and execution of wills. The proposed change would give the Court jurisdiction to validate or revoke 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 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.”
Such a change can open up multiple new documents to interpretation and potentially increase the number of challenges to wills and revocations that currently go through the court system.
If you have questions about how recent or proposed legislative changes may affect your will or power of attorney, or if you would like to speak to one of our lawyers about estate planning, contact us today to arrange for a consultation.