Succession Law Reform Act, R.S.O. 1990, c. S.26

• Jurisdiction: Ontario

Succession Law Reform Act

R.S.O. 1990, Chapter S.26

Consolidation Period: From January 1, 2022 to the e-Laws currency date.

Last amendment: 2021, c. 4, Sched. 11, s. 36.

CONTENTS

Interpretation

Definitions

1 (1) In this Act,

“child” includes,

(a) a child conceived before and born alive after the parent’s death, and

(b) a child conceived and born alive after the parent’s death, if the conditions in subsection 1.1 (1) are met; (“enfant”)

“grandchild” means the child of a child; (“petit-fils”, “petite-fille”)

“issue” includes,

(a) a descendant conceived before and born alive after the person’s death, and

(b) a descendant conceived and born alive after the person’s death, if the conditions in subsection 1.1 (1) are met; (“descendance”)

“personal representative” means an executor, an administrator or an administrator with will annexed; (“représentant successoral”)

“spouse”, except in Part V, has the same meaning as in section 1 of the Family Law Act; (“conjoint”)

“will” includes,

(a) a testament,

(b) a codicil,

(c) an appointment by will or by writing in the nature of a will in exercise of a power, and

(d) any other testamentary disposition. (“testament”) R.S.O. 1990, c. S.26, s. 1 (1); 2005, c. 5, s. 66 (1, 2); 2016, c. 23, s. 71 (1-4); 2021, c. 4, Sched. 11, s. 36 (1).

(2) Repealed: 2016, c. 23, s. 71 (5).

Relationship of persons born outside marriage

(3) In this Act, and in any will unless a contrary intention is shown in the will, a reference to a person in terms of a relationship to another person determined by blood or marriage shall be deemed to include a person who comes within the description despite the fact that he or she or any other person through whom the relationship is traced was born outside marriage. R.S.O. 1990, c. S.26, s. 1 (3).

Application of subs. (3)

(4) Subsection (3) applies in respect of wills made on or after the 31st day of March, 1978. R.S.O. 1990, c. S.26, s. 1 (4).

Section Amendments with date in force (d/m/y)

2005, c. 5, s. 66 (1, 2) - 09/03/2005

2016, c. 23, s. 71 (1-5) - 01/01/2017

2021, c. 4, Sched. 11, s. 36 (1) - 19/04/2021

Posthumous conception, conditions

1.1 (1) The following conditions respecting a child conceived and born alive after a person’s death apply for the purposes of this Act:

1. The person who, at the time of the death of the deceased person, was his or her spouse, must give written notice to the Estate Registrar for Ontario that the person may use reproductive material or an embryo to attempt to conceive, through assisted reproduction and with or without a surrogate, a child in relation to which the deceased person intended to be a parent.

2. The notice under paragraph 1 must be in the form provided by the Ministry of the Attorney General and given no later than six months after the deceased person’s death.

3. The posthumously-conceived child must be born no later than the third anniversary of the deceased person’s death, or such later time as may be specified by the Superior Court of Justice under subsection (3).

4. A court has made a declaration under section 12 of the Children’s Law Reform Act establishing the deceased person’s parentage of the posthumously-conceived child. 2016, c. 23, s. 71 (6).

Interpretation

(2) For the purposes of paragraph 1 of subsection (1), “assisted reproduction”, “embryo”, “reproductive material”, “spouse” and “surrogate” have the same meaning as in section 1 of the Children’s Law Reform Act. 2016, c. 23, s. 71 (6).

Extension of time

(3) On motion or application, as the case may be, by a surviving spouse who gives notice under paragraph 1 of subsection (1), the Superior Court of Justice may make an order extending the period referred to in paragraph 3 of that subsection, if the Court considers it appropriate in the circumstances. 2016, c. 23, s. 71 (6).

Section Amendments with date in force (d/m/y)

2016, c. 23, s. 71 (6) - 01/01/2017

PART I
TESTATE SUCCESSION

General

Power to dispose of property by will

2 A person may by will devise, bequeath or dispose of all property (whether acquired before or after making his or her will) to which at the time of his or her death he or she is entitled either at law or in equity, including,

(a) estates for another’s life, whether there is or is not a special occupant and whether they are corporeal or incorporeal hereditaments;

(b) contingent, executory or other future interests in property, whether the testator is or is not ascertained as the person or one of the persons in whom those interests may respectively become vested, and whether he or she is entitled to them under the instrument by which they were respectively created or under a disposition of them by deed or will; and

(c) rights of entry, whether for conditions broken or otherwise. R.S.O. 1990, c. S.26, s. 2.

Will to be in writing

3 A will is valid only when it is in writing. R.S.O. 1990, c. S.26, s. 3.

Execution

4 (1) In this section,

“audio-visual communication technology” means any electronic method of communication which allows participants to see, hear and communicate with one another in real time. 2021, c. 4, Sched. 9, s. 1 (2).

Valid execution of will

(2) Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator. 2021, c. 4, Sched. 9, s. 1 (1).

Permitted use of audio-visual communication technology

(3) A requirement in clause (2) (b) or (c) that witnesses be in the presence of the testator or in one another’s presence for the making or acknowledgment of a signature on a will or for the subscribing of a will may be satisfied through the use of audio-visual communication technology, if,

(a) at least one person who acts as a witness is a licensee within the meaning of the Law Society Act at the time;

(b) the making or acknowledgment of the signature and the subscribing of the will are contemporaneous; and

(c) the requirements specified by the regulations made under subsection (7), if any, are met. 2021, c. 4, Sched. 9, s. 1 (2).

Counterpart signing, subscribing

(4) For the purposes of clause (3) (b), signatures and subscriptions required to be made under clause (2) (b) or (c) may, subject to any requirements specified by the regulations made under subsection (7), be made by signing or subscribing complete, identical copies of the will in counterpart, which shall together constitute the will. 2021, c. 4, Sched. 9, s. 1 (2).

Same

(5) For the purposes of subsection (4), copies of a will are identical even if there are minor, non-substantive differences in format or layout between the copies. 2021, c. 4, Sched. 9, s. 1 (1).

No form of attestation

(6) Where witnesses are required by this section, no form of attestation is necessary. 2021, c. 4, Sched. 9, s. 1 (1).

Regulations

(7) The Minister responsible for the administration of this Act may make regulations providing for requirements that must be met under subsection (3) or (4). 2021, c. 4, Sched. 9, s. 1 (3).

Section Amendments with date in force (d/m/y)

2021, c. 4, Sched. 9, s. 1 (1) - 07/04/2020; 2021, c. 4, Sched. 9, s. 1 (2, 3) - 20/05/2021

Will of member of forces on active service

5 (1) A person who is,

(a) a member of the Canadian Forces placed on active service under the National Defence Act (Canada);

(b) a member of any other naval, land or air force while on active service; or

(c) a sailor when at sea or in the course of a voyage,

may make a will by a writing signed by him or her or by some other person in his or her presence and by his or her direction without any further formality or any requirement of the presence of or attestation or signature by a witness.

Certificate of active service

(2) For the purposes of this section, a certificate purporting to be signed by or on behalf of an officer having custody of the records certifying that he or she has custody of the records of the force in which a person was serving at the time the will was made, setting out that the person was on active service at that time, is proof, in the absence of evidence to the contrary, of that fact.

Where certificate not available

(3) For the purposes of this section, if a certificate under subsection (2) is not available, a member of a naval, land or air force is deemed to be on active service after he or she has taken steps under the orders of a superior officer preparatory to serving with or being attached to or seconded to a component of such a force that has been placed on active service. R.S.O. 1990, c. S.26, s. 5.

Holograph wills

6 A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. R.S.O. 1990, c. S.26, s. 6.

Position of signature

7 (1) In so far as the position of the signature is concerned, a will, whether holograph or not, is valid if the signature of the testator made either by him or her or the person signing for him or her is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.

Idem

(2) A will is not rendered invalid by the circumstance that,

(a) the signature does not follow or is not immediately after the end of the will;

(b) a blank space intervenes between the concluding words of the will and the signature;

(c) the signature,

(i) is placed among the words of a testimonium clause or of a clause of attestation,

(ii) follows or is after or under a clause of attestation either with or without...