We have reported earlier on how the COVID pandemic changed the practice of Personal Injury law, including the move to online discovery and proceedings. Online discovery has come to the practice of Wills and Estates law too. Many lawyers find the new process both safer and more convenient.

The rapid adoption of virtual meetings – whether with clients, opposing counsel and parties, or court appearances – has allowed litigators to expand their practice. Virtual meetings have become a time saver for shorter meetings by cutting out commuting time. They have allowed clients to seek out specialists regardless of the physical location of their practice which has meant in turn that lawyers now routinely serve clients across an entire province.

Steve Jamael of Sydney, Nova Scotia works with other lawyers across Canada and the USA and is an advisor to Nudorra Capital. He notes an increase in people getting their estate planning in order, particularly wills and power of attorney. He also sees an increased awareness of capital gains tax among people with large estates.

Horne Coupar LLP is a British Columbia wills, trusts, and estate law boutique. The firm’s leading growth area is the amended regulations governing beneficial interests in property in the Landowner Transparency Act. Full disclosure of beneficial interest is now expected, and laws are being passed to accommodate that, to catch people laundering money, supporting terrorism, and evading taxes. Partner Fiona Hunter told Canadian Lawyer, “Most Canadians aren’t those people, but the law applies to everyone, so my typical client now has much more compliance to meet than they did five years ago.”

Angelique Moss of Casey & Moss LLP in Toronto notes that societal factors, like an aging population that wants to remain in their home and an adult child who lives there to provide support, are significant causes of litigation. Her firm has seen an uptick in cases such as pre-death litigation, power-of-attorney and guardian disputes. Another frequent precursor to estate litigation is the “failure to launch” child, which can include will challenges, claims for dependent support, and disputes over joint account-holder accountability and inheritance after death. Moss told Canadian Lawyer, “It often comes as a shock to our clients to discover that their ‘lazy’ brother or sister who lived rent-free could be entitled to a bigger share of their parent’s estate than what is provided for in the estate plan.”

There have been three significant changes to Ontario’s Succession Law Reform Act in the past year.

The introduction of s. 21.1 moves Ontario away from a strict compliance regime. Now, Ontario judges have the legislative authority to declare a will valid as long as it is in substantial compliance with the requirements for a valid will set out at ss. 3-8 of the Succession Law Reform Act.

The case law interpreting and applying s. 21.1 of Ontario’s Succession Law Reform Act is still developing (see, for example, Groskopf v. Rogers et al, 2023 ONSC 5312, and White v White, 2023 ONSC 3740). However, the change to the Ontario’s Succession Law Reform Act brings it line with the other provinces which follow a substantial compliance regime, such as British Columbia, Alberta, Saskatchewan, and Manitoba.

The second is the change to s. 15, which deals with how a will may be revoked. Now, any marriages which take place on or after January 1, 2022, no longer revoke a will.

Lastly, the introduction of s.17(3) and 17(4) means that a separated spouse is treated as though they were legally divorced from the testator at the time of the testator’s death. This means that any provisions in the testator’s will gifting property to a separated spouse or naming them as estate trustee are revoked and the will is to be read as though the separated spouse pre-deceased the testator.

Suzana Popovic-Montag is managing partner at Hull & Hull LLP of Toronto She welcomes Ontario’s overhaul. “We saw many predatory marriage issues arise due to that, and just recently, we’ve caught up with some of the other provinces, and that’s no longer the case.” Popovic-Montag also welcomes the rule change that allows for some flexibility in wills.

Laura Cardiff of Casey & Moss LLP told Canadian Lawyer, “We often see people in a dispute over money but can’t afford a lawyer because they are cash-poor. We are trying to do our part to solve this access to justice issue.” Steve Jamael supports litigation loans as a great option, especially for someone named as executor. “You can move forward faster”, he says.