A recent Saskatchewan decision, Vance (Re), 2021 SKQB 320 (CanLII) addresses the issue of the application of the law regarding the revocation of wills by marriage (or cohabitation) and the repeal of that law.

The facts of the decision are quite simple:

a. The deceased made a will in 2004 that gave his entire estate to his then-infant son;

b. The deceased then had another child in 2010,

c. By 2014, the deceased had been in a common-law relationship for 2 years. The deceased subsequently separated from his common-law spouse.

d. The deceased died in 2021.

At issue was the validity of the 2004 will. According to s. 17 of The Wills Act, 1996, a will is revoked when the testator marries or has cohabited in a spousal relationship for 2 years (subject to certain exceptions, such as a declaration in the will that it is in contemplation of marriage or cohabitation. These exceptions did not apply here.).

Based on s. 17 of the Wills Act, the issue was a simple one: the will was revoked by reason of the cohabitation.

However, Saskatchewan revoked s. 17 effective March 2020. Marriage or cohabitation no longer revoked a will. The question of whether the 2004 will was revoked therefore got more complicated.

The court discussed principles of statutory interpretation. (See para. 11 of the decision for a concise distinction between “retroactive” and “retrospective” operation of statutes.) The court observed that there is a presumption against retroactive and retrospective operation of statutes. This presumption exists to ensure that laws will only apply retroactively where the legislature has clearly indicated that it has weighed the benefits of retroactivity with its potential unfairness or disruption. This can be demonstrated by an express provision relating to retroactivity or by a consideration of whether there is sufficient evidence that the legislation was intended to apply to past events. Under the Saskatchewan legislation, there was no express provision that the repeal of s. 17 was to have retroactive effect. The court went on to conclude that the evidence relating to the repeal of s. 17 was not sufficient to support a finding that the presumption against retroactivity did NOT apply.

Accordingly, the court concluded that the repeal of s. 17 in 2020 did not serve to revive the 2004 will that was revoked by s. 17 in 2014. The court observed that retroactive operation of the repeal of s. 17 would have the effect of reviving all wills, new or old, deemed revoked by s. 17. “It is not difficult to see the mischief this would create, and the confusion families would face.”

Accordingly, the estate in Vance passed on an intestacy to the deceased’s two children, and not to the one child under the 2004 will.

Ontario recently repealed the “revocation by marriage” provisions of the Succession Law Reform Act effective January 1, 2022. There does not appear to be any express provision in the repeal legislation providing for the retroactive application of the repeal. Thus, the Vance decision may be of interest to Ontario practitioners.

Thank you for reading.

Paul Trudelle