Articles 2024

When someone dies without a Will in Ontario, there are several issues that can come up vis-à-vis the deceased person’s spouse. One is the spouse’s preferential share, which was recently increased to $350,000, and another is whether the spouse will even be entitled to share in the distribution of the deceased person’s estate on an intestacy. Is Ontario behind the times in dealing with spouses in its intestacy rules?

A new bench-bar committee has been established at the request of the Superior Court of Justice’s Regional Senior Judges Council. The Ontario Estates Bench-Bar Liaison Committee had its first meeting in January 2022. At the January meeting, the Committee discussed several topics, including Estates List model orders, tracking decisions made pursuant to recent changes to the Succession Law Reform Act, and clarification regarding scheduling and court bookings for the Toronto Estates Office.

In December 2021, British Columbia became the first province to allow electronic Wills. Although there are certainly some potential pitfalls of electronic Wills, there are also a great deal of benefits, including practical considerations. Time will tell how successful BC's foray into electronic Wills is, and whether other provinces may also develop their own legislation in that regard.

Members of the OBA's Trusts and Estates Law Section gathered in March for the monthly Brown Bag Lunch. As always, participants raised fascinating practice questions, including an animated discussion about the concept of making a gift to an executor in lieu of compensation. One participant also previewed that some additional proposed changes to the probate forms and Rules would be coming shortly.

Multiple Wills can be a helpful estate planning strategy, which can result in significant estate administration tax savings. However, prudent drafting is key, as an error can lead to confusion and delay, as well as increased costs to the estate. Fortunately, the result in Gordon v Gordon, 2022 ONSC 550 was a good one for the executors and the drafting lawyer, but the decision serves as a reminder that even a simple error could potentially have significant negative consequences.

At the February Brown Bag Lunch, as usual, attendees had interesting questions and shared their knowledge and experience. Discussion topics included the new probate forms and recent changes to the Succession Law Reform Act, multiple Will drafting issues, and when the first dealings exemption may be lost.

Although the matter of the proper execution of a Will may seem simple, failure to duly execute a Will could have a major impact on whether a testator's wishes can be implemented after his or her death. In the recent Ontario Court of Appeal decision in Bayford v Boese, the Court considered the formal validity of a Will in interesting circumstances. This case comment by Jennifer Corak reviews the Court's appeal and costs decision.

Going forward, there will be a new province-wide bench and bar committee to allow communication and consultation regarding estates matters throughout Ontario. Angelique Moss shares a brief overview of the new committee's purposes and objectives.

At the final session of the OBA series dealing with Will challenges, attendees had the privilege of hearing directly from three Superior Court judges, who shared their insight on effective trial advocacy. The judges also provided helpful practice tips on related matters, including length and contents of affidavits, and strategies for dealing with difficult opposing counsel. Charlotte Hobson shares her experience attending the program.

In January, OBA Trusts and Estates Law Section members gathered for the first Brown Bag Lunch of 2022. Discussion topics included recent updates and lively debates about whether and when to provide a copy of a Will to a disinherited individual, and an estate trustee's obligation to defend a dependant's support claim.