Estates & Wills & Trusts

Making the case for reforming estates legislation

By AdvocateDaily.com Staff

Ontario needs to follow other provinces and revamp its wills and estates legislation to reflect current needs, Toronto estates and trusts lawyer Ian Hull tells AdvocateDaily.com.

“Within the past 10 years British Columbia and Alberta both have had the courage to update their wills statues whereas Ontario is still working within the confines, essentially, of the 1978 Succession Reform Act,” says Hull, co-founding partner with Hull & Hull LLP. “Maybe those provinces will shame Ontario into paying attention to it.”

The three main areas where Hull would like this province to follow their lead is in allowing wider discretion in terms of the beneficiaries, how marriage and common-law couples are viewed and in allowing more latitude to ensure the wishes of the deceased are respected.

In B.C., he says, there is an ability to essentially re-write the will to allow more flexibility through the statute to cure deficiencies, such as scenarios where the children are excluded from the estate when they should clearly be included.

In Ontario, the process includes making a dependant’s relief application to get a court to consider whether there is a moral obligation and whether the distribution can be done more fairly.

The contrast between the provinces had been quite stark until a groundbreaking case in 2004, says Hull.

“The Court of Appeal of Ontario said you ought to consider looking at moral obligations and consider whether or not independent adult beneficiaries should or should not be excluded,” Hull explains.

That, he says, helped to partially bridge the gap, although B.C. continues to allow a more clear consideration of the circumstances to decide whether the will ought to be varied to accommodate adult independent children.

Since 2004 other Ontario courts have followed the lead of that landmark case, but Hull says there’s still a big hurdle in terms of making claims against an estate.

“Much broader power exists in British Columbia to vary a will than it does in Ontario. We’re creeping toward it a little bit and I’m not sure we need legislative change. I think that’s a policy decision,” he says. “But we have to deal with common-law spouses better. And the legislative change, in that case I think, is the only way to do it.”

A single remedy exists for unmarried spouses in Ontario, Hull says. And that is to make an application for support under the Succession Law Reform Act. Through that process, the court assesses the common-law spouse’s needs and considers whether or not and how much of the estate they should receive.

“In Ontario, an application for support will be a giant lawsuit, it can be intensely expensive and bring a great deal of risk to the claimants. If they were married they would have automatic rights of equalization in Ontario. If you’re not married you are essentially discriminated against and you have to go through the cumbersome process of bringing a support application,” he says.

B.C. allows its courts broad powers so those types of applications aren’t nearly as cumbersome, he says.

Another aspect where Ontario and B.C. differ is that marriage in this province automatically revokes a will. That is no longer the case in British Columbia.

Hull also says Ontario is inflexible when there are deficiencies in a will. If it doesn’t have the signatures of two witnesses, it simply fails.

“British Columbia sort of said, 'OK, look, we’re going to open the door to give more latitude to ensure the deceased person’s last wishes are going to be respected. So we’ll look at it.' So there’s no absolute if there’s a problem with the will,” he says.

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