We are practising estate litigation in interesting times. Depending on the date of marriage, a litigant’s case can either succeed or fail simply because the marriage falls on the wrong side of a critical date.

Prior to January 1, 2022, remarriage revoked a Will (the former s.16 of the Succession Law Reform Act (“SLRA“)). On or after this date, a Will survives remarriage. Subject to his or her statutory entitlements to support under Part V of the SLRA or to elect under the Family Law Act (“FLA”), the new spouse is not entitled to a share in the estate (unless the Will provides for the new spouse).

The policy reasons for eliminating revocation by marriage were grounded in preventing elder abuse (i.e. predatory marriages). However, the amended legislation also protects those entering into a new marriage that is not in any way predatory: not everyone sought legal advice prior to marriage and many simply did not appreciate the former impact of remarriage on their estate plan.

The new statutory regime protects the new spouse’s statutory rights under the SLRA and FLA while at the same time sheltering: (i) pre-existing beneficial entitlements or (ii) pre-existing legal commitments made by the testator which depend on the Last Will surviving remarriage (such as, for instance, those made under Mutual Wills). More often than not, such beneficiaries are children of the testator’s first marriage.

As we progress beyond the first anniversary of the revised legislation, the date of marriage is a key intake question for litigation counsel. If your case falls on the wrong side of this date (either because the marriage under the old law defeats a beneficial entitlement or, under the new law, creates challenges for the surviving spouse), seek out counsel to consider whether other legal or equitable remedies may allow for a claim to be advanced against an estate.

Thanks for reading,

David Morgan Smith