Marriage No Longer Revokes an Existing Will
Beginning on January 1, 2022, marriage will not automatically revoke a will executed before the marriage. Prior to January 1, 2022, marriage automatically revoked a will executed before the marriage.[1] The change is to guard against “predatory marriages.” A predatory marriage typically involves a younger individual exploiting a physical and / or mentally impaired older individual (usually a man). In many cases, the two become married. The older individual may have capacity to enter into the marriage, thereby revoking their existing will, however may not have the capacity to execute a new will. The younger individual (predator) would then benefit from the older individual’s estate under law of intestacy.
Separation and Entitlement Under an Existing Will
If spouses divorced after executing wills, the Succession Law Reform Act[2] provided the appointment of the former spouse as an executor / trustee and any bequest made to the former spouse is revoked and the will is read as if the former spouse had predeceased the will-maker. This did not apply to separated spouses, who would be entitled to act as an executor / trustee and would continue to receive any bequest from the other spouse.
The Succession Law Reform Act was amended to include separated spouses.[3] Beginning on January 1, 2022, the appointment of a separated spouse as an executor / estate trustee and any bequest made to the separated spouse are revoked. Spouses are considered separated if:
- Before the will-maker’s death,
- They lived separate and apart for three years immediately preceding the will-maker’s death;
- They entered into a separation agreement;[4]
- A court made an order with respect to the settlement of their affairs from the breakdown of their relationship; or
- A family arbitration award was made;[5] and
- At the time of the will-maker’s death, they were living separate and apart as a result of the breakdown of their relationship.[6]
The Right to the Preferential Share
When an individual dies without a will (an intestacy) and has a surviving spouse, the surviving spouse is entitled to a “preferential share”.[7] Where a person dies intestate (i.e. without a will) and leaves a spouse and one child, the spouse is entitled to one-half of the residue of the estate after the payment of the preferential share.[8] Where a person dies intestate and leaves a spouse and more than one child, the spouse is entitled to one-third of the residue of the estate after the payment of the preferential share.[9]
The amount of the preferential share was increased from $200,000 to $350,000 on March 1, 2021. For estates of persons who died before March 1, 2021, the amount is $200,000. For those who die after March 1, 2021, the amount is $350,000.[10]
[1] On January 1, 2022, section 16 of the Succession Law Reform Act (“SLRA”), RSO 1990, c S.26 was repealed. Section 16 provided that a marriage revokes a will.
[2] Subsection 17(2) of the SLRA.
[3] Subsection 17(3) of the SLRA.
[4] Under Part IV of the Family Law Act, RSO 1990, c F.3.
[5] Under the Arbitration Act, 1991, SO 1991, C 17.
[6] Subsection 17(4) of the SLRA.
[7] Section 45 of the SLRA.
[8] Subsection 46(1) of the SLRA.
[9] Subsection 46(2) of the SLRA.
[10] Section 1 of Ontario Regulation 54/95.