Ontario’s Succession Law Reform Act (“SLRA”)[1] is a venerable piece of legislation that was first enacted in 1977. It made a large number of important changes in the law of succession that were then long overdue. However, the statute is more than 40 years old and, although there have been some minor changes to it over the years, it is long overdue for a complete overhaul. This is evident when compared to succession statutes in other Canadian jurisdictions. Some have updated their statutes completely, while others have made significant changes to them.
The Covid-19 Pandemic that engulfed us along with the rest of the world in 2020 and which still places significant constraints on us, demonstrated that there were serious defects in the SLRA. In the main these concerned the difficulty in attending to the execution of wills and other estate planning documents when lawyers were (and are) required to maintain a physical distance from their clients. This problem was exacerbated by the fact that Ontario, unlike many other provinces had not enacted a validating provision, that would have enabled courts to grant probate of wills even though not all the formalities were complied with.
Ontario, along with other provinces, solved the difficulties in the execution of wills in part by passing emergency orders[2] under the Emergency Management and Civil Protection Act[3] that permitted execution of estate documents through the use of audio-visual communication technology and signing or subscribing identical copies of wills in counterpart.
The Hon. Doug Downey, Ontario’s Attorney General, consulted with the estates bar and took the lead in passing the emergency orders and in proposing further reforms. On 16 February 2021, he introduced Bill 245 in the Legislature, entitled Accelerating Access to Justice Act, 2021 (“AAJA”)[4] It received first reading on that day. The AAJA makes significant and welcome changes to a number of statutes and enacts another statute. However, in this blog I shall focus on Schedule 9, which adds new provisions to and repeals other provisions in the SLRA.
This blog is rather technical and skips back and forth between the AAJA and the SLRA. So in order to make the blog more accessible I have bolded beginning portions (and sometimes other portions) of paragraphs to indicate when I am going to discuss a new section of the AAJA.
Sections 1 and 2 of the AAJA repeal subsections 4(1), (3), and (4) of the SLRA, the formal requirements section. They replace those subsections with new provisions, and add a new subsection (5).
The section repeats the substance of the emergency orders referred to above and thus makes them permanent. Subsection (1) defines “audio-visual technology” as “any electronic method of communication in which participants are able to see, hear and communicate with one another in real time”. Subsection (3) permits the use of audio-visual communication technology for the purpose of signing and subscribing a will in accordance with the existing subs. 4(2). However, subs. (3) requires: (i)) that one of the witnesses must be a licensee of the Law Society of Ontario; (ii) that the making or acknowledgement of the testator’s signature or the subscribing of the will by the witnesses be contemporaneous; and (iii) that any requirements imposed by regulation are met. Subsection (4) permits the signing and subscribing in counterpart. A new subs. (5) quite properly provides that when a will is signed or subscribed in counterpart, copies of the will are identical even if there are minor, non-substantive differences in format or layout between the copies. And a new subs. (7) permits the making of regulations providing for the requirements that must be met under subss. (3) and (4).
Sections 2 and 3 of the AAJA are very significant. Section 2 repeals clause 15(a) of the SLRA, which provides that a will or part of a will is revoked by marriage, subject to s. 16. Section 3 of the AAJA repeals s. 16 of the SLRA, which makes three exceptions to clause 15(a). Thus, these two sections of the AAJA get rid of the “revocation by marriage” provision in the Act. This is a most welcome change, one that was previously adopted by other provinces.[5] The repeal goes a significant way in stopping the consequences of a predatory marriage. With such a marriage the will of the party who is the victim of the relationship is revoked and the predator then stands to make a significant gain when the victim dies intestate. I believe that more must be done to prevent predatory marriages, but this is an important first step.[6]
Section 17 of the SLRA deals with changes in circumstances. Subsection (1) provides, “Subject to subsection (2)” a will is not revoked by presumption of an intention to revoke it when there is a change in circumstances. Subsection (2) provides that, “except when a contrary intention appears by the will”, when the testator’s marriage is terminated or declared a nullity, a devise or bequest to the former spouse, the appointment of the former spouse as executor or trustee, and the conferring of a general or special power of appointment on the former spouse are revoked and the will must be interpreted as if the former spouse predeceased the testator. Clause 4(1) of the AAJA amends subs. 17(1) of the SLRA by striking out the phrase in that subsection placed in quotation marks above and replacing it with, “Except as otherwise provided in this section”. Clause 4(2) of the AAJA amends s. 17 by adding three new subsections to s. 17. Subsection 17(3) extends subsection 17(2), with necessary modifications to the situation when the testator and his or her spouse are separated at the testator’s death. Subsection 17(4) lays down rules for determining whether the parties were separated. They are as follows:
(4) A spouse is considered to be separated from the testator at the time of the testator’s death for the purposes of subsection (3), if,
(a) before the testator’s death,
(i) they lived separate and apart for three years as a result of the breakdown of their marriage,
(ii) they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,
(iii) a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or
(iv) a family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and
(b) at the time of the testator’s death, they were living separate and apart as a result of the breakdown of their marriage.
Finally, subsection 17(5) contains transitional provisions, which state that subs. (3) applies if an event in clause 4(a) occurs on or after the day in which subs. 4(2) of the AAJA comes into force, even if the will was made before that day, except that in the case of subclause 4(a)(i), the spouses must have begun to live separate and apart on or after that day.
Section 5 of the AAJA introduces another very welcome provision into the SLRA. The new section 21.1 of the SLRA is a validating provision that exists in most of the other Canadian wills statutes.[7] The section provides:
21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, 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.
(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000.
Subsection 5(3) of the AAJA is a transitional provision. It states that subs. (1) applies if the deceased died on or after the day section 5 of the AAJA comes into force.
Note that s. 21.1(2) ensures that s. 21.1 does not introduce electronic wills, something that British Columbia did recently.[8]
Section 6 of the AAJA makes a change to Part II of the SLRA, the intestacy provisions. Under Part II the surviving spouse of the intestate is given significant priority over descendants. However, s. 6 of the AAJA adds a new section 43.1 to the SLRA. Subsection 43.1(1) provides:
43.1 (1) Any provision in this Part that provides for the entitlement of a person’s spouse to any of the person’s property does not apply with respect to the spouse if the spouses are separated at the time of the person’s death, as determined under subsection (2).
Subsections (2) and (3) of s. 43.1 then go on make provisions to determine whether the parties were separated and transitional provisions similar to those made in subsection (4) and (5) of s. 17 of the SLRA, described above.
Section 7 of the AAJA makes an important amendment to s. 6 of the Family Law Act.[9] It adds subs. 6(21), which provides that if a surviving spouse has no entitlement to the deceased intestate spouse’s property by reason of s. 43.1, s. 6 applies as if the surviving spouse’s entitlement under Part II of the SLRA has a value of $0.
Section 8 of the AAJA repeals s. 63(3) of the Statute Law Amendment Act (Government Management and Services), 1994.[10] Section 63 amended s. 45 of the SLRA and subsection (3) determined the day it came into force.
Section 9 of the AAJA provides for the coming into force of its provisions. Subsection (1) provides that subject to subsections 9(2), (3), and (4), Schedule 9 comes into force when the AAJA receives Royal Assent. Subsection (2) provides quite rightly that subsection 1(1) is deemed to have come into force on 7 April 2020, which is the date on which the first of the emergency orders referred to above concerning the use of audio-visual communication technology for the execution of wills came into effect. Subsection (3) provides that subsections 1(2) and (3) of the AAJA, which concern the use of audio-visual communication technology in executing wills, come into force on a day to be named by the Lieutenant Governor. And subsection (4) provides that sections 2 to 7 of the AAJA come into force on a day to be named by proclamation of the Lieutenant Governor that is not earlier than 1 January 2022.
In conclusion, the AAJA has made important and welcome changes to the SLRA, some of which were long overdue. However, the SLRA is badly in need of a thorough revision and it is my hope that this will in fact be undertaken.
—
[1] R.S.O. 1990. c. S.26.
[2] O. Reg 129/20, made on 7 April 2020. It’s substance was revoked and replaced by O. Reg. 164/20, made on 22 April 2020.
[3] R.S.O. 1990, c. E.9.
[4] https://www.ola.org/sites/default/files/node-files/bill/document/pdf/2021/2021-02/b245_e.pdf.
[5] Alberta, British Columbia, and Saskatchewan have repealed these provisions. Quebec has never had a “revocation on marriage” provision. For details see Oosterhoff on Wills, 9th ed. (forthcoming spring of 2021) by Albert H. Oosterhoff, C. David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters/Carswell, 2021), §10.3.2(a).
[6] On this point, see my blog, “Curbing the Scourge of Predatory Marriages by Legislation”, http://welpartners.com/blog/2019/11/curbing-the-scourge-of-predatory-marriages-by-legislation/. Posted 12 November 2019.
[7] For a list of these statutes and a discussion of their validating powers, see Oosterhoff on Wills, supra, §9.4.
[8] See Wills, Estates and Succession Act, S.B.C. 2009, s. 35.1-35.3, added by S.B.C. 2020, c. 12, which also made complementary amendments to existing sections.
[9] R.S.O. 1990, c. F.3.
[10] S.O. 1994, c. 27.
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Written by: Albert Oosterhoff
Posted on: February 20, 2021
Categories: Commentary
Ontario’s Succession Law Reform Act (“SLRA”)[1] is a venerable piece of legislation that was first enacted in 1977. It made a large number of important changes in the law of succession that were then long overdue. However, the statute is more than 40 years old and, although there have been some minor changes to it over the years, it is long overdue for a complete overhaul. This is evident when compared to succession statutes in other Canadian jurisdictions. Some have updated their statutes completely, while others have made significant changes to them.
The Covid-19 Pandemic that engulfed us along with the rest of the world in 2020 and which still places significant constraints on us, demonstrated that there were serious defects in the SLRA. In the main these concerned the difficulty in attending to the execution of wills and other estate planning documents when lawyers were (and are) required to maintain a physical distance from their clients. This problem was exacerbated by the fact that Ontario, unlike many other provinces had not enacted a validating provision, that would have enabled courts to grant probate of wills even though not all the formalities were complied with.
Ontario, along with other provinces, solved the difficulties in the execution of wills in part by passing emergency orders[2] under the Emergency Management and Civil Protection Act[3] that permitted execution of estate documents through the use of audio-visual communication technology and signing or subscribing identical copies of wills in counterpart.
The Hon. Doug Downey, Ontario’s Attorney General, consulted with the estates bar and took the lead in passing the emergency orders and in proposing further reforms. On 16 February 2021, he introduced Bill 245 in the Legislature, entitled Accelerating Access to Justice Act, 2021 (“AAJA”)[4] It received first reading on that day. The AAJA makes significant and welcome changes to a number of statutes and enacts another statute. However, in this blog I shall focus on Schedule 9, which adds new provisions to and repeals other provisions in the SLRA.
This blog is rather technical and skips back and forth between the AAJA and the SLRA. So in order to make the blog more accessible I have bolded beginning portions (and sometimes other portions) of paragraphs to indicate when I am going to discuss a new section of the AAJA.
Sections 1 and 2 of the AAJA repeal subsections 4(1), (3), and (4) of the SLRA, the formal requirements section. They replace those subsections with new provisions, and add a new subsection (5).
The section repeats the substance of the emergency orders referred to above and thus makes them permanent. Subsection (1) defines “audio-visual technology” as “any electronic method of communication in which participants are able to see, hear and communicate with one another in real time”. Subsection (3) permits the use of audio-visual communication technology for the purpose of signing and subscribing a will in accordance with the existing subs. 4(2). However, subs. (3) requires: (i)) that one of the witnesses must be a licensee of the Law Society of Ontario; (ii) that the making or acknowledgement of the testator’s signature or the subscribing of the will by the witnesses be contemporaneous; and (iii) that any requirements imposed by regulation are met. Subsection (4) permits the signing and subscribing in counterpart. A new subs. (5) quite properly provides that when a will is signed or subscribed in counterpart, copies of the will are identical even if there are minor, non-substantive differences in format or layout between the copies. And a new subs. (7) permits the making of regulations providing for the requirements that must be met under subss. (3) and (4).
Sections 2 and 3 of the AAJA are very significant. Section 2 repeals clause 15(a) of the SLRA, which provides that a will or part of a will is revoked by marriage, subject to s. 16. Section 3 of the AAJA repeals s. 16 of the SLRA, which makes three exceptions to clause 15(a). Thus, these two sections of the AAJA get rid of the “revocation by marriage” provision in the Act. This is a most welcome change, one that was previously adopted by other provinces.[5] The repeal goes a significant way in stopping the consequences of a predatory marriage. With such a marriage the will of the party who is the victim of the relationship is revoked and the predator then stands to make a significant gain when the victim dies intestate. I believe that more must be done to prevent predatory marriages, but this is an important first step.[6]
Section 17 of the SLRA deals with changes in circumstances. Subsection (1) provides, “Subject to subsection (2)” a will is not revoked by presumption of an intention to revoke it when there is a change in circumstances. Subsection (2) provides that, “except when a contrary intention appears by the will”, when the testator’s marriage is terminated or declared a nullity, a devise or bequest to the former spouse, the appointment of the former spouse as executor or trustee, and the conferring of a general or special power of appointment on the former spouse are revoked and the will must be interpreted as if the former spouse predeceased the testator. Clause 4(1) of the AAJA amends subs. 17(1) of the SLRA by striking out the phrase in that subsection placed in quotation marks above and replacing it with, “Except as otherwise provided in this section”. Clause 4(2) of the AAJA amends s. 17 by adding three new subsections to s. 17. Subsection 17(3) extends subsection 17(2), with necessary modifications to the situation when the testator and his or her spouse are separated at the testator’s death. Subsection 17(4) lays down rules for determining whether the parties were separated. They are as follows:
(4) A spouse is considered to be separated from the testator at the time of the testator’s death for the purposes of subsection (3), if,
(a) before the testator’s death,
(i) they lived separate and apart for three years as a result of the breakdown of their marriage,
(ii) they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,
(iii) a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or
(iv) a family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and
(b) at the time of the testator’s death, they were living separate and apart as a result of the breakdown of their marriage.
Finally, subsection 17(5) contains transitional provisions, which state that subs. (3) applies if an event in clause 4(a) occurs on or after the day in which subs. 4(2) of the AAJA comes into force, even if the will was made before that day, except that in the case of subclause 4(a)(i), the spouses must have begun to live separate and apart on or after that day.
Section 5 of the AAJA introduces another very welcome provision into the SLRA. The new section 21.1 of the SLRA is a validating provision that exists in most of the other Canadian wills statutes.[7] The section provides:
21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, 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.
(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000.
Subsection 5(3) of the AAJA is a transitional provision. It states that subs. (1) applies if the deceased died on or after the day section 5 of the AAJA comes into force.
Note that s. 21.1(2) ensures that s. 21.1 does not introduce electronic wills, something that British Columbia did recently.[8]
Section 6 of the AAJA makes a change to Part II of the SLRA, the intestacy provisions. Under Part II the surviving spouse of the intestate is given significant priority over descendants. However, s. 6 of the AAJA adds a new section 43.1 to the SLRA. Subsection 43.1(1) provides:
43.1 (1) Any provision in this Part that provides for the entitlement of a person’s spouse to any of the person’s property does not apply with respect to the spouse if the spouses are separated at the time of the person’s death, as determined under subsection (2).
Subsections (2) and (3) of s. 43.1 then go on make provisions to determine whether the parties were separated and transitional provisions similar to those made in subsection (4) and (5) of s. 17 of the SLRA, described above.
Section 7 of the AAJA makes an important amendment to s. 6 of the Family Law Act.[9] It adds subs. 6(21), which provides that if a surviving spouse has no entitlement to the deceased intestate spouse’s property by reason of s. 43.1, s. 6 applies as if the surviving spouse’s entitlement under Part II of the SLRA has a value of $0.
Section 8 of the AAJA repeals s. 63(3) of the Statute Law Amendment Act (Government Management and Services), 1994.[10] Section 63 amended s. 45 of the SLRA and subsection (3) determined the day it came into force.
Section 9 of the AAJA provides for the coming into force of its provisions. Subsection (1) provides that subject to subsections 9(2), (3), and (4), Schedule 9 comes into force when the AAJA receives Royal Assent. Subsection (2) provides quite rightly that subsection 1(1) is deemed to have come into force on 7 April 2020, which is the date on which the first of the emergency orders referred to above concerning the use of audio-visual communication technology for the execution of wills came into effect. Subsection (3) provides that subsections 1(2) and (3) of the AAJA, which concern the use of audio-visual communication technology in executing wills, come into force on a day to be named by the Lieutenant Governor. And subsection (4) provides that sections 2 to 7 of the AAJA come into force on a day to be named by proclamation of the Lieutenant Governor that is not earlier than 1 January 2022.
In conclusion, the AAJA has made important and welcome changes to the SLRA, some of which were long overdue. However, the SLRA is badly in need of a thorough revision and it is my hope that this will in fact be undertaken.
—
[1] R.S.O. 1990. c. S.26.
[2] O. Reg 129/20, made on 7 April 2020. It’s substance was revoked and replaced by O. Reg. 164/20, made on 22 April 2020.
[3] R.S.O. 1990, c. E.9.
[4] https://www.ola.org/sites/default/files/node-files/bill/document/pdf/2021/2021-02/b245_e.pdf.
[5] Alberta, British Columbia, and Saskatchewan have repealed these provisions. Quebec has never had a “revocation on marriage” provision. For details see Oosterhoff on Wills, 9th ed. (forthcoming spring of 2021) by Albert H. Oosterhoff, C. David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters/Carswell, 2021), §10.3.2(a).
[6] On this point, see my blog, “Curbing the Scourge of Predatory Marriages by Legislation”, http://welpartners.com/blog/2019/11/curbing-the-scourge-of-predatory-marriages-by-legislation/. Posted 12 November 2019.
[7] For a list of these statutes and a discussion of their validating powers, see Oosterhoff on Wills, supra, §9.4.
[8] See Wills, Estates and Succession Act, S.B.C. 2009, s. 35.1-35.3, added by S.B.C. 2020, c. 12, which also made complementary amendments to existing sections.
[9] R.S.O. 1990, c. F.3.
[10] S.O. 1994, c. 27.
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