January 25, 2021

As estate lawyers, we are often asked how to avoid litigation after someone dies. While there is no way to guarantee that conflict will not arise after death, it is always helpful to have a plan; in other words, make a will. However, even if you have made a will, your job does not end there. There are certain laws which are not necessarily well known, but nevertheless key, to ensuring that a last will and testament reflects a person’s wishes and can be carried following marriage or divorce.

How Marriage Affects a Will

It often comes as a surprise to people that a will is revoked by the marriage of a testator (i.e. the person executing the will). Section 16 of Ontario’s Succession Law Reform Act provides that if you make a will and then get married, the will is revoked unless:

– there is a declaration in the will that it is made in contemplation of the marriage;

– the spouse of the testator elects to take under the will (by signing a document and filing it within one year of the testator’s death); or

– the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to a beneficiary or estate trustee after the death of the testator.

How Divorce Affects a Will

Getting divorced after making a will invalidates certain sections of the will, but not the entire document. Unless a contrary intention appears in the will, section 17(2) of the Succession Law Reform Act states that if a person has made a will and then divorces, any bequest (gift) to the former spouse is considered void, as is the appointment of the former spouse as estate trustee. Divorce also revokes any general or special power of appointment granted in favour of the former spouse.

It should be noted that separation, in contrast to divorce, does not have the same (or any) impact upon a person’s will.

Marriage, divorce and even the death of a spouse are prudent times to review and re-evaluate your estate plan to ensure that any life events do not end up frustrating testamentary intentions.