For over two years, the pandemic has greatly impacted our way of life and has highlighted our modern society’s need for flexibility. The practice of law has been of no exception.

Bill 245 – Accelerating Access to Justice Act, 2021, S.O, 2021, c.4 received royal assent on April 19, 2021, and has ushered in many new developments to improve access to justice, reducing obstacles and delays citizens may experience while interacting with the law. 

Bill 245 affects over 100 legislative documents, with most amendments coming into force in late 2021 and January 1st, 2022.  

We are pleased to offer an overview of the important updates that Bill 245 brought to the Succession Law Reform Act (SLRA), namely its impact on marriages and will revocations, the power it has granted on the Superior Court of Justice to validate improperly executed wills, and its impact on separated spousal entitlements.

Marriages can no longer revoke a will

Section 16 of the SLRA, which provides that a will is revoked upon marriage, except in specific circumstances, was repealed on January 16, 2022. However, the repeal only applies to marriages that take place on or after January 1, 2022. This means that the old law still governs and functions to revoke wills executed prior to marriages occurring on or before December 31, 2021, unless such a will was explicitly made in contemplation of marriage. 

The Ontario Superior Court’s new authority

As of January 1, 2022, the Superior Court of Justice is granted the power to validate improperly executed documents or writings under section 21.1, so long as the court believes that it sets out the testamentary intentions of the deceased; whether it be to revoke, alter or revive a will. This amendment is also significant because it allows the court to validate a will improperly executed by the deceased.

It is important to note that this new provision does not apply to wills that are executed electronically. Furthermore, the provision only applies if the deceased died on or after January 1, 2022. 

Separated spouses lose entitlements and appointments

Section 17(2) of the SLRA states that unless a contrary intention is expressed in the will, when the testator’s marriage is terminated through divorce or declared null, any entitlements their former spouse may have had under the will are revoked, and the former spouse will be considered to have died before the testator.  

In practical terms, this means that a former spouse would become disentitled to any gifts or beneficial interest in the deceased’s estate, to being appointed as executor or trustee of the estate, and to receiving any special or general power of appointment. 

However, this provision did not consider separated individuals who were still legally married. The result was that upon death, some ex-spouses may have benefited from certain entitlements that the deceased may not have desired. 

Section 17(3) was added to address this legislative gap, and now disentitles separated spouses from receiving benefits and powers under the Act.

The new section now provides that a spouse shall not inherit any of their deceased spouse’s property if the parties were separated at the time of the testator’s death.

The SLRA considers a spouse to be separated from the deceased:

If: 

a. Immediately before the deceased’s death, both parties were living separately for at least three (3) years as a result of their marriage breakdown;

b. The parties entered into a valid separation agreement;

c. The court made an order to settle their affairs with respect to the marriage breakdown; or

d. A family arbitration award was made with respect to their rights and obligations arising out of the marriage breakdown; 

And 

a. At the time of the deceased death, both parties were living separately as a result of marital breakdown.

Part II on intestate succession was amended to address the same concerns and provides a mirror definition of separation. Prior to the amendment, Part II of the act entitled separated spouses to a portion of the deceased’s estate if they died without a valid will. Section 43.1 now provides that a former spouse shall not inherit any of their deceased spouse’s property if the parties were separated at the time of the deceased’s death. 

Note that these amendments will not apply retroactively as they will only touch separations that occur on or after January 1, 2022. 

Prepared by Patricia Bejide (Student-at-Law)