The Accelerating Access to Justice Act, which will come into force January 1, 2022, reforms some of the more dated provisions of the Succession Law Reform Act (“SLRA”) and deals with some of the challenges presented by the SLRA in recent years. The first substantial change eliminates the revocation of Wills by marriage. A second significant amendment provides for virtual execution (signing and witnessing) of Wills using audio-visual technology. This development may be a relief to those with mobility issues, the infirm, and busy lawyers, allowing them to complete the Will-signing process from the comfort of their home or office.
Perhaps the most significant change relates to the treatment of separated spouses, resulting in more similar treatment to divorced spouses following separation. Under section 17(2) of the current SLRA, unfair outcomes may arise after married spouses separate but before they obtain a formal divorce and one of the spouses dies. Unless one of the spouses sets out a contrary intention in their Will when the marriage is terminated (by divorce) or declared a nullity, a devise or bequest to a former spouse (a gift in a Will), their appointment as an executor or estate trustee, and their ability to act according to general or special powers dictated in a Will, are revoked and the Will is construed as if the former spouse had predeceased the Will-maker. The current SLRA leaves a gap in the law for those spouses who have separated but are not yet divorced, whereby the living spouse may receive property contrary to the deceased spouse's wishes.
In response, legislators have crafted section 17(3) to deal with the situation where married spouses are separated but not divorced at the time of death. As of January 1, 2022, section 17(4) of the SLRA will define separation where if before the date of the testator's death:
1) They lived separate and apart for three years as a result of marriage breakdown;
2) They entered into a valid separation agreement under the Family Law Act;
3) There is a court order stipulating the rights and obligations in settlement of their affairs as a result of the marriage breakdown; or
4) A family arbitration award was made regarding their rights and obligations as a result of the marriage breakdown; and
5) They were living separate and apart at the time of the testator's death.
The result is that separated spouses who do not expeditiously obtain a divorce, agreement, court order, or arbitral award will be treated in the same way as divorced spouses if they meet the criteria in section 17(4). Changes to section 43.1 of the SLRA will also eliminate separated spouses’ entitlements on intestacy. For many families, these changes will eliminate the uncertainty created when spouses have been separated for an extended period and failed to resolve their family law affairs prior to death.
To learn more about these changes to the Succession Law Reform Act, or how they may affect your rights and obligations as a separated spouse, book your free consultation at www.reganlawfirm.ca.
November 28, 2021
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