Changes to Ontario estate law no longer revoke will made prior to marriage

Changes took effect on January 1

Changes to Ontario estate law no longer revoke will made prior to marriage

Following the enactment of Bill 245, significant changes to the Ontario’s Succession Law Reform Act (SLRA) came into force on January 1.

The changes will greatly affect persons separated from their spouse, living in common law relationship, or intending to marry in 2022, according to Margaret Rintoul, partner at Blaney McMurty LLP, in a blog post.

Bill 245, or the Accelerating Access to Justice Act, 2021, seeks to enhance access to justice for Ontario people across the system, notably by streamlining processes and removing barriers in the province’s courts, tribunals, estate law, family and child protection sectors. The bill received royal assent in April 2021.

The bill particularly amended s. 16 of the SLRA, which provides for the revocation of a will upon marriage, except in certain circumstances. Pursuant to the amended s. 16, marriages − occurring on or after January 1, 2022 − will no longer revoke existing wills.

“Positive outcome from these changes is that couples who have been living together and decide to marry or couples who have otherwise made satisfactory estate planning arrangements do not have to change their wills as soon as they get married,” Rintoul wrote.  “There will be no need for wills done just before marriage to say that they are done in contemplation of marriage.”

But the amended s. 16 will not be retroactive as it will not apply to persons who are already married before January 1, 2022. Thus, anyone who got married before the said date is deemed to not have an existing will, unless they made a new one after and in contemplation of marriage.

The bill also provides that beginning January 1, a former spouse of a deceased person will no longer have property rights, although they are only separated but not yet legally divorced.  A separation will be treated the same as a divorce, provided that the spouses have lived apart for three years and obtained a valid separation agreement or court order.

This means that a separated spouse − who has been designated as an estate trustee or a beneficiary in a will – will no longer be entitled to the benefits under the will.  If there is no will, there is no entitlement to share in the estate.   

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