Changes in the Law Regarding Inheritances

By: Marek Malicki

As of January 1, 2022, some significant changes came into effect in the Province of Ontario relating to Wills and Inheritance Law. I will touch on a few of the changes.

Prior to January 1, 2022, marriage revoked a Will. This meant that if a person married, any Will that that person had made previously was not valid. So, in a second marriage if one or both of the parties already had a Will bequeathing some or all of their assets to children from an earlier relationship, that Will was no longer valid. This created the potential for serious disputes among potential beneficiaries upon the death of the testator. Now, the previous Will remains valid and only a new Will revokes it.

A testator must still provide for dependants and the spouse has the right elect to take under the Will or under an Intestacy or in the alternative elect what the Family Law Act would have allowed in the event of separation.

Until January 1, 2022, if a person died intestate (without a Will) his or her spouse (but only a married spouse) inherited the first $350,000 of the estate and if there were children, the spouse would share the rest with the children. This would happen even if the spouse were separated from the deceased.

Now, if the parties were separated upon death, the surviving spouse would not inherit. The separation must have been for at least three years or less if the parties had signed a separation agreement or there was a court order.

Courts may now recognize a Will even though a Will may not have been perfectly executed but is clear enough to show the testator‘s intentions, Before, all the formalities had to be complied with. Two witnesses, with the testator signing in their presence and both witnesses present at the same time.

The province has also passed into law on a permanent basis (not temporarily) the recognition of Wills signed virtually, although the Will must still contain the actual signature of the testator.

A Will should be prepared by and signed in front of a lawyer. There are many reasons for this. Some include the following: The lawyer can ensure that the person is who they say they are. The lawyer will discuss the client’s relationships and wishes, check how assets are held and ensure that the wording in the Will carries out the testator’s instructions. The lawyer will check if the testator has provided for dependants, whether it be a spouse, a child or a disabled dependant. The lawyer will ensure that the testator has capacity, that is, that he or she understands what they are doing and the implication of their instructions. The lawyer will also ensure that the testator is signing voluntarily and is not being pressed, usually by a potential beneficiary, to do something that they otherwise would not have done.

Every case is different and if you want more information about your specific situation, you should speak with your lawyer.