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Access to justice in estate law: Are we moving fast enough?

Friday, July 09, 2021 @ 1:53 PM | By Arin Klug

Arin Klug %>
Arin Klug
The Accelerating Access to Justice Act, 2021 (AAJA) received royal assent on April 19. The changes implemented through this legislation touch on a wide range of sectors — from judicial appointments, to the organization of Ontario’s land tribunals, to estates law. The overarching goals of the legislation are to modernize processes and remove barriers in Ontario’s justice system.

While the amendments to Ontario’s Succession Law Reform Act (SLRA) may improve access to justice for some, many Ontarians continue to face access barriers that must be addressed.

Remote witnessing

To execute a will, the SLRA requires the testator and two witnesses to be “in the presence of” each other. This phrase had always been interpreted to mean “in the same physical location,” but COVID-19 social distancing guidelines sparked an urgent need to permit remote witnessing.

Temporary emergency orders sanctioned the use of videoconferencing technology to satisfy the “presence” requirement. The AAJA makes this accommodation permanent.

When a will is executed with remote witnesses, at least one witness must be a Law Society of Ontario (LSO) licensee. This requirement was introduced as part of the emergency orders and has been incorporated in the permanent rule; this requirement does not exist for an in-person will signing.

Even when the pandemic is over, the ability to execute estate planning documents remotely will provide accommodation for individuals who cannot travel; it may also make the signing process more convenient for people who simply prefer not to travel. But the requirement to have at least one LSO licensee witness means the remote witnessing rules will not increase access broadly.

Estate planning lawyers have observed that remote witnessing increases the time, complexity and cost associated with the execution process. Providing more options at an increased cost does little to address broader access to justice concerns. Also, many Ontarians cannot afford legal services to begin with. These individuals must find other means of implementing even the most basic estate planning. For someone who cannot afford the services of a lawyer or paralegal, the remote witnessing rules won’t improve access to justice.

When the remote witnessing rules were first introduced, the LSO licensee requirement made sense. In-person executions posed problems, and a quick fix was needed. The LSO licensee requirement gave stakeholders the comfort that was needed to implement a stop-gap solution in short order. But with more time to reflect on other options that may be available, the rule requiring an LSO licensee witness should be re-examined to ensure that it is justifiable in light of the access barriers it creates.

Spousal entitlements

Historically, getting married would revoke someone’s existing will. If a spouse died without having made a new will after the date of marriage, the surviving spouse would receive an entitlement under Ontario’s intestacy rules.

More recently, the government identified a growing problem of predatory marriages motivated by the benefits that the revocation of an existing will conferred on a new spouse. The AAJA repeals the provision of the SLRA that causes a will to be revoked by marriage.

Divorce also has several consequences for estate planning under the SLRA. In cases of intestacy, divorced spouses do not have any entitlements to each other’s estates. If the deceased had a will, any benefits or executor appointments in favour of an ex-spouse are automatically revoked.

Up until now, the SLRA did not have a parallel rule for separated spouses; instead, they were treated just like any other married couple. Pursuant to the AAJA, the SLRA will now define the circumstances in which a couple is considered to be separated and treat separated spouses in the same way as divorced spouses.

While these updates protect new spouses and separated spouses, common law partners still have no entitlement in cases of intestacy. This differentiates Ontario from provinces like B.C., Alberta, Saskatchewan, Manitoba, and P.E.I., where common law partners have been granted entitlements under intestacy laws. Modern estate planning legislation should account for the fact that non-traditional family structures are becoming increasingly common.

Court-ordered validity of wills

Ontario has always been a “strict compliance” jurisdiction in the context of determining a will’s validity. This means any deficiency in the will-signing process caused a will to be deemed invalid — even if it contained the deceased’s true testamentary wishes.

Under the AAJA, Ontario is no longer a strict compliance jurisdiction. As of Jan. 1, 2022, if the court is satisfied that a document contains the testamentary wishes of a deceased person, the court can use its discretion to validate the document as the individual’s will. However, this authority does not extend to electronically signed wills (e-wills).

The e-will is another area of estate planning that the government should seek to advance. The topic merits consideration of issues related to identity verification, capacity, witnessing, execution, storage, alteration, revocation and probate. As other jurisdictions (e.g. Nevada, Florida, Illinois, Arizona, and B.C.) roll out e-wills legislation, Ontario has the opportunity to examine how e-wills operate elsewhere and craft legislation that will allow people to make wills electronically — just as they do everything else.

By identifying deficiencies and seeking meaningful change, this government has been on the right track when it comes to modernizing estate planning in Ontario. While changes have been accelerated by COVID-19, my hope is that this momentum will continue post-pandemic.

Arin Klug is the co-founder and president of Epilogue. Prior to starting Epilogue, he practised as a tax and estate planning lawyer in downtown Toronto, helping his clients achieve their estate planning, business succession and philanthropic goals. He founded Epilogue after seeing how difficult it is for people to complete their estate planning and learning that most Canadian adults don't have even basic estate planning in place. Epilogue's goal is to democratize estate planning for all Canadians.

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