During the COVID-19 crisis, individuals should take the time to review their affairs to ensure that their Wills accurately represent their current personal circumstances and wishes.
When a marriage or common law relationship breaks down, parties often assume that this breakdown automatically results in the nullification of any relevant clause in their Will, however, this is simply not the case.
Married Couples
Where a former spouse of a divorced couple dies, leaving part or all of their estate to their former spouse, the Succession Law Reform Act automatically comes into force upon divorce to sever clauses in relation to the former spouse; the Will shall operate as if the former spouse predeceased the testator, unless a contrary intention is shown. If the spouses have separated, but not divorced, the separation has no impact on the Will and any of the estate left to such an individual will be inherited. Unless a new Will or codicil is made, you have not ‘washed your hands’ of any legal ramifications that your previous relationship.
Often, separating spouses enter into separation agreements, however this is not always a sufficient legal step to ensure your former spouse does not inherit. In Makarchuk v Makarchuk, the spouses separated and executed a separation agreement where they released all rights they may have had in each other’s estates. One of the spouses died, executing his Will just five months before the separation agreement was signed appointing his former spouse as executor and naming his former spouse as the sole beneficiary. The parties never obtained a divorce and Mr. Makarchuk died five years later. The Court found that the language of the separation agreement was not broad enough to remove the entitlement in each of the spouse’s Wills, stating “Mr. Makarchuk had a number of means available to him to effectively revoke the gift he had made to Mrs. Makarchuk prior to their separation” and as a result, the entire estate passed to his former spouse.
Common Law Spouses
If your Will names your common law partner as a beneficiary or executor, unless you specify that the Will is only valid while the relationship persists, the Will and all bequests or appointments remain valid upon separation. If there is no Will, the estate falls into intestacy. Common law couples do not have any automatic entitlement to each other’s estates.
Practicalities
A Will can be revoked only by remarriage, the creation of a new Will, a written declaration revoking the Will or the deliberate destruction of the Will. It is important that you do not use the Succession Law Reform Act as a mechanism to change the beneficiaries of your Will, as unintended outcomes could arise if those substitute beneficiaries are no longer appropriate choices or if the named individual pre-deceases the testator.
If the bequest which pertains to a former spouse is revoked and there is no substitute beneficiary, the estate will fall into intestacy and be distributed as per the Order of Succession. The only way to ensure that your wishes in respect of your estate are upheld is to execute a new Will reflecting your post-separation intentions.
How can we assist?
Our experienced family lawyer and estates lawyer can assist parties in divorce proceedings, draft appropriate separation agreements, and prepare new wills or codicils. Please contact us to arrange an initial consultation .
Brief informational summaries about insurance litigation, commercial litigation and family law litigation matters in the courts of Ontario and Canada are periodically published on our website. Please note that our website content is for informational purposes only, and should not be construed or relied upon to provide legal advice. If you require legal advice, please request an initial consultation with Gilbertson Davis LLP using the Request Consultation Form on this webpage or by contacting our Intake Coordinator on (416) 979-2020, ext. 223 (both subject to the Terms of Use described on our Contact page).
Comments & Opinions by Gilbertson Davis LLP lawyers and staff on its Blog, or in media interviews, appearances or publications, or in professional publications, are personal to them, and do not necessarily represent the opinions of the Firm or anyone at the Firm other than the individual expressing those comments or opinions.
About the Author
