It is very important when researching information on the internet, that the references are kept up-to-date. As of January 1st 2022, many articles explaining that a Will is revoked on marriage will be out-of-date.
The law in Ontario is changing to protect disinherited children, and the court battles that arise from “predatory marriages”.
A predatory marriage is when an elderly widow or widower is befriended by somebody hoping to benefit from their passing. It has been a growing issue across the World.
The loophole in the law is that in many jurisdictions, marriage automatically revokes any previous Will. So if your elderly parent has a Will in place that leaves their entire estate divided between their children, or perhaps to a charity, this Will is automatically cancelled if they remarry.
The result is that if they do not prepare a new Will, then their estate will be divided according to the intestate laws of that jurisdiction. The largest portion of the estate will end up in the hands of the new spouse.
What makes this particularly troubling, and the reason that the law has been changed, is that many people have no idea that their perfectly valid Will has been voided.
Your widowed parent may have written a Will that leaves everything shared equally between their two children. They remarry and have no intention of changing their distribution plan. But in most Canadian Provinces (and in the UK), the Will is automatically cancelled, usually without the testator even knowing.
How different Provinces handle Wills on marriage
In many jurisdictions there is an assumption that your intentions for your estate have changed if you get married. Therefore marriage automatically cancels, or “revokes” a Will in all Provinces except BC, Alberta, Saskatchewan, Quebec, and now Ontario.
In British Columbia and Alberta, the courts do not automatically assume that getting married changed your wishes for how you wanted your estate distributed. So your Will is not automatically revoked.
In Saskatchewan, the law changed on March 16, 2020, so marriage no longer automatically revokes a Will.
Changes to Ontario law
There are a number of key changes coming into effect on January 1st 2022 in Ontario:
- A Will is no longer automatically revoked on marriage.
- Separation cancels all bequests to a separated spouse in a Will. This is important because previously, “separated” was not a recognized marital status for inheritance. Many couples lived apart for years without going through the formality of getting a divorce. But this meant that if a Will was not updated, the estranged spouse would still receive their share of the estate. From January 1st 2022, a separated spouse is considered the same as a divorced spouse – the Will is not cancelled, but any bequest to the separated spouse is treated as if that separated spouse is no longer alive (it would pass to any alternate beneficiary).
- If you were to die without a Will, then a separated spouse no longer inherits under Ontario law from the new year. Again, this is treating a separated spouse in the same way as a divorced spouse.
- A Will is recognized as valid even if it not executed properly if it can be demonstrated that it reflects the wishes of the testator. Likewise, every effort is made to understand the real intentions of the testator, rather than look for an obscure interpretation of the wording.
What does this mean for LegalWills.ca customers?
Our general philosophy is that you should decide what happens to your estate. You should never rely on a change of status, or a default distribution of your estate. You should write your Will and then update it whenever your circumstances change. This is one of the key advantages of using a service like the one at LegalWills.ca.
Our help text will change, but nothing within our service will be changing as a result of these new laws. The laws protect people who take no action. But you should write your Will today reflecting your current circumstances, and update your Will whenever your personal or financial situation changes.
Tim Hewson is one of the founders of LegalWills.ca.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets including CTV, Global News, The Toronto Star, and other leading Canadian publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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