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Estate law reformers in Ontario are celebrating a major milestone. As of January 1, 2022, new legislation came into effect that – amongst many other changes – says existing wills can no longer be revoked due to marriage.
These changes are an important reminder that just because a will has been completed, doesn’t mean it shouldn’t be reviewed occasionally. Here are the estate planning highlights from the new legislation:
How it affects new marriages
Let’s say you and your spouse decide to create a will to ensure your loved ones are entitled to your estate after death. Under the old Ontario legislation, if you were to get divorced and then remarried, the second marriage would void your will. At that point, upon your death, it would be like you didn’t have a will, meaning your children would receive a set portion of the estate, and your spouse may receive an unintended portion.
If you were to get remarried after January 1, 2022, the will would still be valid, and your former spouse would be treated as legally deceased, meaning your children would be entitled to everything left to them in the will. Your new spouse wouldn’t be entitled to anything until a new will is created.
This legislation has been long-awaited by many calling for estate law reform in Ontario, especially since British Columbia and Alberta have already implemented these changes.
Before this bill, many didn’t realize that their wills were invalidated after a subsequent marriage. These changes help protect against “predatory marriages” where a new spouse takes advantage of the invalidity of the existing will.
What this means for separated couples
Under the new law, separated couples no longer have property rights. This means that, if you and your spouse are separated, but not divorced, and you pass away after January 1, 2022, your separated spouse will not be able to make a claim to your estate.
The new bill states that a couple is considered separated if:
- they are not living in the same residence (due to a marriage breakdown) for at least three years,
- they have an official separation agreement,
- they have a court-ordered settlement agreement,
- they have a family arbitration award.
Before January 1, a separated spouse could apply for part of their former partner’s estate under family law, unless an official separation agreement existed.
How the changes simplify the estate-planning process
The new legislation relieves some of the frustrations and duplicate work people face when estate planning.
Under the new bill, wills that were previously deemed invalid due to small technical infractions- such as having only one witness sign the will – can now be saved by the courts. This new rule, called “substantial compliance,” is already used in many other provinces. It’s still unclear how substantial compliance will be interpreted by the courts or how much flexibility will be permitted.
Virtual witnessing of wills, which has been temporarily allowed in Ontario during the pandemic, will now be permitted permanently, making it easier for many to complete their wills. One of the witnesses must be a licensed lawyer or paralegal.
Important takeaways
With the new legislation, the wishes of Ontarians will be respected and their estates protected, and not invalidated unknowingly because of a simple divorce, separation or remarriage.
More than anything, these changes emphasize the importance of always reviewing your will, especially after major life changes. Speak with your Zeifman’s team member today to ensure your estate planning is refreshed as you plan your life’s major financial milestones.
