January 2022 ushered in some changes to wills in Ontario worth noting:
Getting married no longer revokes your will. Some other provinces already have this in place, and other jurisdictions are also contemplating this.
Note this only applies to weddings that took place from January 1, 2022 onwards. If you were married before then, your will was still revoked when you got married.
Rights of inheritance from a spouse after separation are reduced. Once you have been separated for three years, you lose your automatic right of inheritance from a spouse. If you have been separated for less than three years but you have a formal separation agreement or a court order of separation, you will also lose that right.
- This is important especially for those all too common situations where separations are never formally dealt with or where relations continue but even if your wills have not been updated they will no longer apply to the separated parties.
Some More Changes from 2021:
Ontario moves to substantial compliance. Bill 245 will allow courts to deem a will that is ‘technically invalid’ as legal as of January 1, 2022. The new rules would allow the courts to declare the will valid if they find qualifying ‘testamentary intention’, even though a technicality such as a valid second witness is missed.
Virtual witnessing is now a permanent alternative. The province already allowed virtual (through audio-visual communication) witnessing due to COVID-19, but the ability to do so is here to stay. Note that one witness must be a licensed lawyer or paralegal, and Ontario law still requires physically signing of the documents.
Preferential share for spouse moves to $350,000. Where someone dies without a will, under the Succession Law Reform Act, if there is a “spouse” and children, the spouse is entitled to the “preferential share”, and ½ of the balance of the estate if there is one child, or 1/3 of the balance if there is more than one child.
Simplified Probate for “Small Estates” up to $150,000. Probate is still necessary for any estate over $50,000, and an estate information return needs to be filed within 180 days, but there is a simplified process for estates up to $150,000 in value. Hopefully this will expedite the process for some, you can find a guide online here: https://www.ontario.ca/page/probate-small-estate
