Changes in Canadian demographics and the resulting increase in instances of divorce and second marriages highlight the importance of revisiting your estate plan following a major life event to ensure your intentions are properly implemented upon your death.
In Ontario, the Succession Law Reform Act provides that a Will is automatically revoked by marriage, subject to particular exceptions. One such exception is where there is a declaration in the Will that it is made “in contemplation of marriage.”
This declaration is only effective in circumstances where the Will-maker has a specific intention to marry a particular person at a particular time. A general intention to marry at some point in the future will not be sufficient to avoid revocation of the Will by marriage. If no exceptions apply and the testator does not execute a further Will subsequent to his or her marriage, the testator will be deemed to have died intestate and Part II of the Succession Law Reform Act will dictate the distribution of the estate.
Unlike marriage, divorce does not automatically revoke a valid Will. Except where a contrary intention appears by the Will, where a testator makes a Will and his or her marriage is subsequently terminated by a judgment absolute of divorce, the Will is construed as if the former spouse had predeceased the testator. All testamentary gifts to the former spouse under the Will are revoked and the alternate beneficiary named in the Will becomes the ultimate recipient. A former spouse’s appointment as estate trustee is similarly revoked and the alternate estate trustee is assigned the role.
Lastly, it is important to note that separation does not impact your Will. If you are separated at the time of your death, your spouse maintains his or her entitlement under the Will, unless the Will has been amended following the separation.
The significant impact of the events described above illustrates the importance of seeking professional advice when preparing your estate plan and revisiting your estate plan following a major life event.
Written by: Jessica Kristensen -Miller Thomson LLP