Choosing to Accept an Otherwise Revoked Will

June 6, 2017 David M Smith Estate Planning, Wills Tags: , , , , 0 Comments

Marriage is commonly understood to have the effect of revoking a will.  The public policy rationale is simple: legal obligations are imposed on spouses to provide support to one another.  A will predating the marriage that does not reflect this obligation would force the surviving spouse to have recourse to statutory remedies. Better to simply start from scratch from the commencement of the marriage and make a will that (presumably and hopefully) adequately provides for the surviving spouse.

The Common Exception to Revocation by Marriage

Marriage does not, however, always have the effect of revoking a will.  There is an exception which gives a nod to the possibility that the testator who is about to marry may have the foresight to make an appropriate will “in contemplation of marriage.”  Accordingly, pursuant to s. 16(a) of the Succession Law Reform Act, if  there is a declaration contained in the will to such effect, it will not be revoked and will remain in force on the death of the testator.

The Lesser-Known Exception to Revocation by Marriage

Just as the testator has the power to avoid revocation by marriage by advance planning, the surviving spouse is empowered by the statute as well.  Although not so well known, Section 16(b) of the Succession Law Reform Act allows the surviving spouse to elect “to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario.”

Presumably, it is a somewhat rare circumstance for a surviving spouse to elect under s. 6(b).  In most circumstances, a Will benefiting the surviving married spouse that is made in advance of the marriage would contain the “in contemplation of marriage” declaration, thereby negating the need to elect.  However, by addressing the circumstance of a Will that does not include the declaration yet still benefits the surviving spouse to his or her satisfaction, unnecessary litigation and recourse to statutory remedies is avoided.

Unintended Consequences?

For the uninformed, s. 6(b) of the SLRA can result in unintended consequences.  Consider a situation in which a testator, incorrectly assuming that his Will which solely benefits the woman who became his wife was automatically revoked by marriage, separates but does not divorce.  He assumes he will die intestate, leaving his estate to his children from a prior marriage.  However, on his death, his separated but not divorced wife is empowered under the SLRA to choose to benefit under a Will which the testator did not realize was open to be relieved from revocation by the surviving wife’s right of election.

As is usually the case, unintended consequences can be avoided by knowledge and information.  In the context of a matrimonial dispute, all possible ramifications of an unexpected death should be considered.

Thanks for reading,

David Morgan Smith

Other articles you may be interested in:

Revocation of a Certificate of Appointment
Revocation by Divorce
Revocation by Marriage in Saskatchewan
Wills Basics: Revocation, Revival, Republication

 

 

 

 

 

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