October 17th 2022
Traditionally in Ontario, a change in one’s marital status would revoke their will. A will made by a single person was revoked upon marriage, a will made by a married couple was revoked upon divorce – only divorce, legal separation was insufficient.
Any will made prior to marriage and after January 1st, 2022 will prevail into marriage, with the caveat that if the spouse is not adequately provided for, an election could be made under section 6 of the Family Law Act. This in essence treats the deceased spouse as having separated from their surviving spouse and entitles the survivor to an equalization of their net family property rather than their claim under the will. Such a claim must be made within 6 months of the date of death. If spouses are separated, but not yet divorced, such a claim may still be brought within six years of legal separation.
Divorce also no longer revokes wills, but does change the treatment of the divorced spouses within them. Divorced spouses are considered to have predeceased the testator, are ineligible to act as executors, and any gifts left to them will lapse. The ultimate fate of these gifts depends on the drafting of the will, and it is possible that an out-of-date or poorly drafted will could be rendered invalid by divorce. Any gifts which are left to a divorced spouse in a will that is made after divorce will remain valid.
Bill 245 has eliminated property rights held by separated-but-not-divorced spouses, treating them as fully legally divorced, so long as their separation began after January 1st, 2022. Spouses are deemed to have been separated if they were living separate and apart from one another due to a breakdown of the marriage for three years or more immediately preceding death, or are otherwise considered such by virtue of separation agreement, court-ordered settlement agreement, or family arbitration award.
Legal advice specific to each situation must be obtained, as there are multiple considerations regarding each situation. If you are considering estate planning consider reaching out to Liddiard Law for a consultation.
Benjamin James Pinfold, BA JD CEA