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Accelerating Access To Justice Act Ontario

Big Changes Coming To Estate Planning In Ontario

The Accelerating Access to Justice Act, 2021 was recently passed in Ontario giving Ontario estate law a much-needed makeover.

COVID-19 descended upon the world seemingly overnight, and flipped everything on its head. Every part of our daily lives was impacted by the sudden lockdowns, and we had to adapt — the way people made their Wills was no exception.

In-person meetings with lawyers – or anyone for that matter – became very difficult. Since a Will had to be signed in the physical presence of two witnesses, making or updating one proved to be nearly impossible at a time when “social distancing” was the new normal. To make matters worse, this was all happening amidst the fear of a pandemic and the unknown of what tomorrow could bring.

Fortunately, the Ontario government quickly recognized these issues and responded. Led by Attorney General Doug Downey, the government continues to take positive steps towards modernizing estate planning law in the province.

COVID forced the Ontario government to make some quick changes

In order to deal with the social distancing guidelines that were put in place, the Ontario government temporarily allowed virtual witnessing of Wills, beginning in April 2020. Then, in August, legislation was passed to enable virtual commissioning, that allows affidavits of execution to be completed remotely.

These measures ensured that people could complete their Wills during COVID, and they turned out to be the first steps in the government’s bigger push to modernize estate planning law.

The Accelerating Access to Justice Act, 2021 was introduced in February 2021, and proposed some significant changes to the rules around estate planning in Ontario. The new legislation was passed in April 2021, and the new rules will likely come into force next year.

The Accelerating Access to Justice Act in a nutshell

The Accelerating Access to Justice Act has some exciting implications for the estate planning space. Here are a few of the ways this law will shake things up.

Virtual witnessing of Wills and POAs become permanent.

The option to remotely witness the signing of a Will and Powers of Attorney was introduced as a temporary measure while the province’s COVID-19 emergency order was in effect. With the passing of the Accelerating Access to Justice Act, remote witnessing has become a permanent option.

When someone wants to have their Will or POA witnessed remotely, some additional conditions need to be met. First, at least one of the two witnesses must be a Law Society of Ontario (LSO) licensee, like a lawyer or paralegal.

In addition, the Will must be signed in counterpart — this means that the Will-maker signs one copy of the Will, and the remote witnesses sign their own, identical copy of the Will. These copies must be kept together to form a single, complete Will.

Marriage does not revoke an existing Will.

For a long time the rule in Ontario was that, when someone got married, any existing Will they had was automatically revoked. This rule was in place to protect a new spouse who may not have been named in an old Will (since spouses receive an automatic entitlement when there is no Will). But this rule sometimes gave rise to other problems, like predatory marriages, when someone marries a vulnerable person and exploits them financially.

The Accelerating Access to Justice Act removes the rule that marriage revokes an existing Will. If someone with a Will gets married, that Will would no longer be revoked automatically.

Separated spouses lose entitlements and appointments.

Getting divorced has always had a significant impact on estate planning in Ontario. If someone dies without a Will, their ex-spouse doesn’t receive an entitlement under the rules of intestacy. When there is a Will, it is read as if their ex-spouse died before them — the ex-spouse cannot act as executor and would receive no distribution from the estate.

Prior to the Accelerating Access to Justice Act, there were no rules dealing with couples who were separated, but still legally married. Separated spouses still had entitlements under intestacy laws, and would receive any assets left to them under the Will of an estranged spouse.

When couples get separated, many things change. It’s likely someone’s wishes about who should receive their assets on death change as well. But many individuals who are separated do not appreciate the importance of making a Will or updating their existing Will.

The new legislation addresses this issue by removing entitlements of separated spouses, both in cases of intestacy (dying without a Will) and in situations where there is a Will. The Act contains specific rules that set out when spouses are considered to be separated.

Flexibility for improperly signed Wills.

The rules around executing (signing) a Will are detailed and formal. Ontario has historically been a "strict compliance" jurisdiction, which means that there is no flexibility when it comes to these rules. If a Will was not signed precisely in accordance with the formal requirements, it would not be deemed a valid Will.

This rule has led to unfortunate outcomes. In some cases, Wills that clearly expressed a person’s last wishes were found to be invalid because the signing process had some technical deficiencies.

The new legislation introduces a remedy that allows the court to “save” a Will that was not properly executed, as long as the court is satisfied that the person intended for the document to serve as their Will. However, the new rules also make it clear that a fully electronic Will (e.g. a digitally-signed Will) is not acceptable as a valid Will.

Looking to the future

The Accelerating Access to Justice Act introduced positive changes to an area of law that has been stagnant for a long time. While the evolution of estate law is exciting, we still need to think about new ways to modernize the law and address the estate planning needs of the public.

Here are some questions we should consider as we think about the future of estate planning in Ontario.

Should there be an LSO licensee requirement for remote witnessing?

If we’re going to name a new piece of legislation like the Accelerating Access to Justice Act, a key focus of the new laws must be just that — access to justice.

For many people, the virtual witnessing rules help achieve this. Individuals who are unable to meet in person with their lawyers to execute their Wills and POAs now have the option to do so remotely.

But what about the people who can’t afford estate planning lawyers? These individuals still need Wills, and solutions like Epilogue provide them with other options to make one. But people who don’t know a lawyer or can’t afford one will be unable to take advantage of the remote witnessing rules.

When the emergency order was introduced, the LSO licensee requirement made sense. It provided a measure of protection at a time when it was important to quickly give people an option to sign Wills remotely.

But in the fullness of time, there should be an examination of the benefits that this requirement provides, as well as the limitations on access it imposes.

Is there enough protection for common-law partners in cases of intestacy?

When someone in Ontario dies without a Will (called dying intestate), the distribution of their assets is governed by the province’s intestacy rules. These rules do not recognize common-law partnerships — in other words, when the act says “spouse”, it is referring to legally married spouses only.

Regardless of how long a common-law relationship lasted before one partner died, how much of their financial lives were intertwined, or whether the couple had children together, a common-law partner in Ontario has no automatic entitlement to the estate when their partner dies without a Will. The Accelerating Access to Justice Act does not change this.

This position actually puts Ontario’s intestacy laws out of step with most other Canadian jurisdictions like British Columbia (which uses the concept of a “marriage-like relationship”) and Alberta’s (which refers to an “adult interdependent partner”).

Modern legislation needs to reflect the fact that there is no longer a “one size fits all” family unit. Updating Ontario’s intestacy rules to protect common-law partners may be the next logical step.

Where does this leave the discussion on electronic Wills?

Even if a Will is being witnessed remotely, it still needs to be printed and physically signed by the Will-maker and two witnesses for it to be valid in Ontario. But in the 21st Century, we are accustomed to doing everything digitally. Perhaps creating a Will should be no exception, but the Accelerating Access to Justice Act explicitly states that electronic Wills (e-Wills) are not valid.

On the surface, it seems like e-Wills make a ton of sense. But they also give rise to issues around things like identity verification, signing procedures, witnessing, storage, and revocation.

Places like Nevada, Florida, Arizona, Utah, and Indiana have already implemented e-Wills or are considering it. Some of these jurisdictions have established detailed rules to address the issues mentioned above.

British Columbia recently passed legislation that will enable someone to sign their Will with an electronic signature and keep it in electronic form, but many of the details aren’t well understood.

The question used to be whether e-Wills are ever going to come to Ontario. It’s becoming clear that it’s no longer a question of “if” but rather “when”. But the province is taking a prudent approach.

Before going all-in on e-Wills, it makes sense to examine how the challenges associated with them are being dealt with elsewhere, and choosing a path forward that is thoughtful and protective of the public interest.

Estate law in Ontario was due for an overhaul, and the Accelerating Access to Justice Act has gotten us part of the way there. There is still a great deal of work to be done, and I’m looking forward to seeing what lies ahead!

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