By: Jonathan M. Weigand,
Following the Ontario Government’s passing of Bill 245 in April 2021, the Accelerating Access to Justice Act 2021, significant changes have been made to Ontario’s Succession Law Reform Act (the “SLRA”) as of January 1, 2022 – one of which being that marriage no longer revokes a Will.
Marriage Previously Revoked a Will in Ontario
The now-repealed Section 15 (a) of the SLRA previously dictated that a Will or part of a Will was revoked by marriage, subject to certain statutory exceptions set out in Section 16.
The exceptions set out in Section 16 dictated that a Will was not revoked by marriage where:
- 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 an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or
- the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate.”
Marriage No Longer Revokes Existing Wills
For individuals who enter into a marriage after January 1, 2022, their Will is no longer revoked simply because of their marriage. A common concern is that newly-weds do not wish for their former spouses to benefit from their estate should they die before making a new Will, but this legislative update does not produce this undesired result. More specifically – the law still protects against divorced and certain separated spouses from receiving any benefits under a Will made prior to the date of the marital breakdown.
Under the new Section 17(2), any appointment or entitlement of a former spouse in the Will is revoked and the Will is construed as though the former spouse had predeceased the testator. What should be of concern however, for all couples, whether married before or after January 1st, 2022, is whether they have a Will in place that considers the surviving spouse and whether the terms of any prior Will will introduce unnecessary conflicts that could otherwise be avoided.
At NIKA LAW LLP, our thorough estate planning process covers all aspects of your estate, including specific planning for re-married individuals and blended families. As lawyers, we understand that all of life’s circumstances can affect your Will and Power of Attorney documents. Whether your estate is relatively small and simple, or large and complex, let one of our team members assist you in planning your legacy.
Contact our office to arrange a complimentary consultation to begin or update your legacy plan.