Proposed estates law changes will create convenience and more litigation, say lawyers

Among the array of estates-law reforms proposed by the province last week are changes that will be welcomed by practitioners and clients for promoting convenience, as well as some that are sure to produce more litigation, say lawyers.

The Ontario Government introduced Bill-245, the Accelerating Access to Justice Act, 2021, on Feb. 16. The measures are intended to modernize the system and “help Ontarians resolve legal matters faster,” said the province. The bill will make permanent the ability to virtually sign and witness wills and powers of attorney, would repeal the law revoking an existing will when the testator gets married and would grant judges the power to validate wills that have not been properly executed. The proposed amendments also take away various property rights from the married spouse of a testator who has died while the two were separated.

While the remote signing of wills and powers of attorney carry risks, it is a reflection of society’s move away from personal interaction, says Krystyne Rusek, a member of the estate litigation group and will, estates and trusts practice at Pallett Valo LLP.

“It certainly will provide a measure of convenience and safety to people who don't want to necessarily meet in person,” says Rusek. “If done properly, where lawyers are taking all of the necessary precautions recommended by both the Law Society of Ontario and our insurer, the remote witnessing can actually be done in a way that protects the testator’s intentions and allows for that to be properly documented.”

The remote signing and witnessing of wills and powers of attorney was allowed temporarily through and emergency Order in Council to accommodate COVID restrictions. Practitioners and clients will welcome the measure’s permanence and likely make use of it, pandemic or no pandemic, says Pia Hundal, an estate and trust litigator at Miller Thomson LLP. After a year of performing these tasks remotely, Hundal says “really good” best practices have been developed.

“We don't know how long COVID is going to stay with us. And I think even after everyone's vaccinated, and we all move forward from this, people will want to do things via videoconference,” Hundal says.

On the risk side, it is difficult over videoconference to determine the capacity of the testator or whether another person is directing them, says Rusek. In cases of incapacity, there is the concern that a third party is present, off camera, coaching the testator, she says.

“There are ways to address that. You can do a panorama view of the room. You can certainly ask the testator if there's any third person in the room. But it is going to leave some of those things open to being challenged,” says Rusek.

Challenges will also result from the changes taking property rights away from a surviving spouse when that person and the deceased testator had been separated, she says. The legislation states that the spouses must have been living separate and apart for three years because of a breakdown in the marriage. 

“All of that is fact based. All of that has to be supported by independent evidence,” she says. “Any evidence as to the deceased side of things is going to have to be corroborated. Everything's going to have to be corroborated by either documents or independent witnesses. And so you're going to see a lot of challenges, specifically relating to the three-year separation provision.”

Hundal says couples can live in the same house and still “technically live separate and apart.”

“That's often a subject of dispute in matrimonial cases,” she says. “There could be some issues around that, but I actually think they've done a good job of trying to anticipate potential litigation issues and try to clearly define the separation.”

Rusek sees similar challenges related to a separation in dependent support claims, where a surviving spouse will argue there was no separation and the couple had lived in a “permanent conjugal relationship before death,” she says.

“And it's very difficult, sometimes, to establish whether there was indeed a separation,” says Rusek.

Giving courts the power to validate wills which do not meet the formal requirements will also be the source of litigation, she says. Under the proposed legislation, the format proves a mechanism that “preserves the testator’s intentions… despite minor technical errors in the document,” says Rusek.

“There is the potential that this power could be extended too far. And, I think it's important that courts proceed carefully and conservatively on this,” she says.