Does Marriage Revoke A Will?
Wills are legally binding documents that set out your wishes for how your assets should be distributed after you die. But there are laws about how to create a valid Will and there are also laws about how to revoke or nullify a Will if it no longer represents your wishes.
If the rules about Wills and estate planning seem confusing—or if you aren’t sure you understand all the ins and outs of a Will—you’re not alone. Creating an estate plan, estate administration, and the legal rules about Wills and estates can be very confusing, and information about Wills, estates, and estate planning varies among provinces.
One issue is that the language people use in Wills and Estates, and the wording people use in talking about Wills and estates, can be complex. Another issue is that in some provinces, Will and succession law has changed recently, and not everyone is aware of how the changes affect them. Even if you understood the law before, you might not be aware that important changes in the law affect how your property is distributed, even in the case of married spouses.
Among the many questions, people have about Wills and estate planning is whether marriage revokes an existing Will. Like many other legal issues in Canada, the answer depends on what province in Canada you live in and what their law says.
Not every province deals with whether marriage affects Wills the same way
The effect on you might also depend on when your Will was written and when you became spouses. In some provinces, the law regarding whether or not a marriage revokes a Will has changed, but that revision might still not affect you.
Here is some information about the relationship between Wills, estates, and marriage.
What is Will revocation?
Will revocation occurs when you have made a valid Will and take action that makes it no longer valid.
In Ontario, for example, revoking a Will can occur in a few ways, according to Section 15 of the Succession Law Reform Act (source: https://www.ontario.ca/laws/statute/90s26#BK17)
15 A will or part of a will is revoked only by,
(a) marriage, subject to section 16;
(b) another will made in accordance with the provisions of this Part;
(c) a writing,
(i) declaring an intention to revoke, and
(ii) made in accordance with the provisions of this Part governing making of a will; or
(d) burning, tearing, or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it.
What this means is that, in Ontario, you can invalidate a Will by writing a new Will, by creating a document that follows certain guidelines stating your intention to nullify your Will, or by destroying the Will personally or having someone else destroy it in your presence and at your direction.
Typically, the most common and effective method of revoking a Will is by writing a new, valid Will with a statement declaring that the new Will replaces any previous documents.
In Ontario, marriage can also invalidate your Will.
It’s important to understand how you can rescind a Will because not properly revoking your Will can have unanticipated consequences for your estate, any spouses and children you have. You may think your current Will is valid, but if it isn’t your estate might not be distributed according to your wishes.
On the other hand, you may think you’ve revoked your Will but if you haven’t done so properly your previous Will may still be valid, even if it no longer represents your wishes for your estate.
What happens to my Will if I live in Ontario and get married?
If you live in Ontario and get married, and you wrote a Will prior to marriage, whether your Will is automatically revoked depends on whether you wrote it “in contemplation of marriage”.
If you created the Will noting that you did so with the intention to be married and the marriage should not nullify the Will, it remains valid.
If your Will wasn’t written in contemplation of marriage, your Will is automatically revoked upon you getting married. If you were to die following your marriage, the courts view you as having died intestate (meaning you died without a Will). Your estate is distributed amongst your spouse and your dependents, based on your family status at the time of your death.
What happens to my Will if I get married in British Columbia or Alberta?
Under the old law, British Columbia and Alberta followed similar laws to Ontario. If you got married your Will was revoked. However, both provinces recently changed their law, so marriage no longer revokes your old Will.
In BC, the Wills, Estates and Succession Act (WESA) sets out the circumstances in which a Will can be revoked. Similar to Ontario, revocation can be done by writing another valid Will, writing a declaration that revokes the Will, or by destruction of the old Will according to certain regulations.
Unlike Ontario law, BC law doesn’t view a shift in circumstances or in your relationship status as proof of a reversal in your intentions for your estate. The courts won’t automatically assume that your getting married affects how you want your estate distributed.
If your Will still represents your wishes after marriage, you don’t need to revise it. If your old Will before you got married didn’t include your spouse, however, there’s a good chance your wishes have changed and you need to update it to reflect that change. Otherwise, your partner could have to go through a long and stressful process to be named your dependant and receive any of your estate. They will not have any guaranteed rights to your estate, no matter how many years you’re been married.
If your Will before marriage included only your children, for example, and you get married without writing a new Will, there’s a chance your spouse won’t receive anything from your estate. If you wanted to provide for your spouse and your children, it’s a good idea to consider writing a new Will.
An exception to this is Wills that were written before the Wills, Estates and Succession Act (WESA) was enacted. If your Will was written and you married before March 31, 2014, your Will would have been revoked. The Wills, Estates and Succession Act (WESA) does not revive Wills that were previously revoked because of marriage.
Do separation or divorce invalidate my Will?
The short answer is—no. Separation and divorce don’t invalidate your Will. But it’s more complicated than that.
Separation has no effect on your Will, so if you’ve only separated but have not taken the steps to divorce your spouse, your Will is still valid even if your feelings about that person have changed.
Divorce can change a Will, but likely won’t invalidate it. Under Ontario law, if you’re divorced but haven’t changed your Will, it’s read as though your former spouse predeceased you. Their interest in your property and their appointment as executor or trustee of your estate are revoked once they become a former spouse.
BC law is similar to Ontario law. If your former spouse is still named in your Will, they are treated as though they predeceased you, unless your Will specifies that their inheritance or executorship is valid even after the relationship ends. In this case, the change in relationship status can affect your estate, unless you provide a statement in your Will that maintains your former spouse’s inheritance.
Important information about Wills
Whether you’re creating or revoking a Will, you must have the capacity to understand the Will, the property you’re distributing, and the claims of people who could reasonably expect to receive an inheritance from you.
All Wills must be signed appropriately. Failure to properly sign a subsequent Will or nullify an earlier one may mean your previous Will is still valid. Currently, Wills must be printed and signed—electronic signatures are not considered valid and legal under the law.
Ontario is a strict compliance regime when it comes to Wills. This means Wills must meet all statutory requirements to be valid. Regardless of your wishes, if your Will doesn’t meet all requirements, the court can’t validate it and will distribute your estate as though you died without one. In some other provinces, the courts would have authority to address issues with your Will, if it can be proven your Will still follows your wishes.
BC law, for example, allows the court to rectify your Will if the court finds that an accidental error or omission, a misunderstanding of your instructions, or a failure to carry out your instructions makes the Will invalid. In such cases, the courts will review evidence of your intent and the reasons for the failure. If the court finds that the error resulted in your Will being invalid even though it represents your wishes, the court would be allowed to distribute your estate according to the Will.
Make sure your Will is valid and represents your wishes for your family
The purpose of your Will is to make sure that your wishes for your estate are honoured after you die. You’ve put time and energy into estate planning. Not fully understanding how or when your Will is revoked can mean that your important wishes aren’t honoured and your loved ones–including any spouses and children–don’t receive the inheritance you intended.
It’s a good idea to check your Will, make sure it’s legal and valid, and ensure it still represents your wishes and includes important information. If not, consider writing a new Will to make sure your loved ones–your family, spouses and children–are taken care of in your estate.