In Ontario, marriage has the effect of revoking a will, except in limited circumstances. These circumstances are:

• where there is a declaration in the will that it is made in contemplation of marriage;
• where the spouse elects to take under the will; or
• where the will is made in the exercise of a power of appointment which would not, if the appointment was not made, pass to the heir, executor or administrator of the testator or the person entitled to the estate on an intestacy.

This is the effect of s. 16 of the Succession Law Reform Act.

The revocation upon marriage provisions are not found in all provinces. For example, in Alberta, the current Wills and Succession Act does not provide that a will is revoked upon marriage. Prior to the passage of the Wills and Succession Act, however, marriage had the effect of revoking a will under the previous Wills Act. British Columbia has similar legislation. For a discussion of the unique provisions of the law in Saskatchewan, see Suzana Popovic-Montag’s blog, here.

An interesting issue involving the interplay of the two regimes (ie, marriage revoking will vs. marriage NOT revoking will) was discussed in the Albert Court of Queen’s Bench decision of Re Goin, 2018 ABQB 643 (CanLII). There, the deceased made a will in 1999. He married in 2005, and died in 2012. At the time of the marriage, the Wills Act was in effect, which provided for revocation upon marriage. At the time of his death, the Wills and Succession Act was in effect.

At issue was whether the Wills Act applied, and therefore the will was revoked upon marriage, or whether the Wills and Succession Act applied, and therefore the will was not revoked.

The court held that the legislation in place at the time of the marriage (ie. the Wills Act) was applicable, and therefore the will was revoked. The court rejected the argument that because the Wills and Succession Act was in effect at the time of death it was the applicable law as being “an illogical and untenable argument”. Such an argument, the court said, would meant the the new Act somehow revived the revoked will.

The court also relied upon transitional language in the Wills and Succession Act which provided that it only applied to marriages on or after the proclamation of the Wills and Succession Act. Further, the wording of the legislation made it clear that the timing of the marriage, and not the death of the testator was key.

I will leave the debate of whether marriage should revoke a will to another day. However, in Ontario, the dramatic effect of marriage on a will must be kept in mind.

Thank you for reading.
Paul Trudelle