Did you know getting married or divorced affects your will?
In Ontario, your Will is automatically revoked on marriage. This means the entire Will is cancelled unless it was drafted in contemplation of marriage.
For example, if you specifically referred to an upcoming marriage, the name of your spouse and your intention that the Will shall remain valid after said marriage, there is no need to draft a new Will once you’ve tied the knot.
Otherwise, a new Will is necessary on marriage – without one, you will be considered to have died intestate and the rules under Ontario’s Succession Law Reform Act will apply.
Divorce / Separation
A divorce, on the other hand, will not automatically revoke your Will. Instead, a Will made prior to a divorce is read as if your ex-spouse died immediately prior to your death. This means that the ex-spouse will not be an executor or beneficiary and any gifts left to the former spouse will go to someone else (presuming you have indicated substitutes and other beneficiaries; otherwise statutory rules will apply).
Separation from a spouse generally has no impact on your Will. This is the case even if you and your former spouse have been separated for years and/or if you have new common law partners.
What may happen where married spouses do not execute new wills after a separation? In Makarchuk v. Makarchuk the couple entered into a separation agreement under which they released all rights they may acquire in each other's estates “under the laws of any jurisdiction”. Prior to this, the couple executed Wills. In his Will, Mr. Makarchuk named Mrs. Mr. Makarchuk as the executor and sole beneficiary.
The couple never divorced and Mr. Makarchuk did not revoke his Will after separation and prior to his death. On reviewing the release clause in the separation agreement, the Court found that it did not specifically exclude the Will, nor was the language broad enough to revoke entitlement under the Will. The terms “rights acquired under law” did not include rights acquired under a Will. As a result, the entire estate of the deceased passed to his separated spouse.
This could have been avoided if Mr. Makarchuk had prepared a new will or if the separation agreement was drafted to expressly exclude entitlements under will.
In most cases, beneficiary designations, such as RRSPs, RRIFs, life insurance policies, and pensions are not affected by divorce or separation. This means that you will have to take steps to remove a former spouse or common-law partner as the beneficiary if you wish to prevent them from receiving benefits under your policy.
Powers of Attorney
Generally, separation and divorce does not revoke prior appointments of former spouses as attorneys for property or personal care – unless specifically drafted to reflect this. It is therefore very important to update your POAs accordingly, as you would likely not want an ex-partner to make decisions on your behalf.
It should be noted that Ontario law applies to people when they die in Ontario. As the laws differ slightly from province to province, there may be some confusion if a person married in one province and died in another. There is even more confusion if an individual married or died outside of Canada. To avoid lengthy and costly legal proceedings, it is best to update your Will upon a new marriage, when entering a common-law relationship, and upon separation and divorce.