Important Changes to Will and Estates Law in 2022

Through these unprecedented times, it is only appropriate that the laws of Ontario are adapting to accommodate the changes. In this blog, I will be going over some of the key upcoming changes to will and estates laws and how they can help you prepare for your estate planning.

Marriage or remarriage no longer automatically revokes one’s will

As it stands right now, marriage or remarriage automatically revokes one’s will. This poses two problems which are:

1) If a person had a will before getting married and later passes away, they would

be deemed to have died intestate (passing away without a Will); and

2) People who remarry could be exposed to predatory marriages where they face

the risk of marrying someone who is only interested in their estate.

However, upcoming changes to the will and estates law have adapted to these unprecedented times and will bring a refreshing change. As of January 1, 2022, marriage or remarriage will no longer automatically revoke one’s Will. This will solve both problems by 1) keeping the will valid after marriage to prevent the person from unintentionally passing away intestate and 2) leaving the ex-spouse as a valid beneficiary to their current will to prevent one's new spouse from inheriting the entire estate.

Courts are being granted the power to save invalid wills

This new power allows the courts to, on a case-by-case basis, decide whether or not a will should be valid or not. With this new power, Ontario is implementing a “substantial compliance” regime, which means that a will can still be valid even though it does not comply with all the legal requirements.

In the past, if a technical requirement such as not having witnesses to a will was not satisfied, the will would be considered invalid. As of January 2022, the amendments to the Succession Law Reform Act will allow courts to save wills from being considered invalid such as the example noted above.

Separated spouses will lose property rights

Currently, a spouse who is separated but not yet divorced can apply for part of the deceased’s estate under the Family Law Act. However, commencing January 1, 2022, a separated spouse will be considered deceased when interpreting a will unless there is a contrary intention in the will. This new law does have some criteria that need to be met to exclude the separated spouse as follows:

1) The parties have been living separate and apart for at least three years as a result

of the breakdown of their marriage, if the period immediately preceded the death

and;

2) The parties entered into a valid separation agreement under Part IV of the Family

Law Act.

If both of the above criteria are not met, then a separated spouse can continue to benefit under the will. Therefore, the earliest date that someone can rely on the three-year separation requirement to terminate their separated spouse’s entitlement to their will is January 1, 2025.