If a Law That Revokes a Will Is Repealed, Can the Will Be Revived?
Since January 1, 2022, marriage no longer revokes a will in Ontario. Previously, however, wills were “revoked by the marriage of the testator” under sections 15(a) and 16 of the Succession Law Reform Act. In 2022, both of these provisions were repealed by Bill 245, also known as the Accelerating Access to Justice Act, 2021.
Recently, in Bolotenko v Wright Estate, 2025 ONSC 1154, an unreported decision of the Ontario Superior Court of Justice, a novel issue related to section 16 of the SLRA arose – the court was asked to determine whether the repeal of section 16 applied retroactively.
The facts of this case were simple. The testator got married in 2003, four years after he had created his will. At that time, sections 15 and 16 of the SLRA operated to revoke the will. The marriage only lasted for seven months. After the testator was married, he never updated his will. He then passed away in April of 2022, after section 16 had been repealed.
The estate trustee applied to the court to ask whether the repeal of section 16 applied retroactively, and took the position that the will remained revoked. Justice Leibovich agreed, confirming that the will was not revived and that the testator passed away intestate.
The court reached this conclusion because the law in Canada presumes that new legislation does not apply retroactively unless the legislation states otherwise. On this point, the Supreme Court of Canada held in Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 that “[i]n the absence of an indication that Parliament has considered retrospectivity and the potential for it to have unfair effects, the presumption must be that Parliament did not intend them.” Justice Côté, writing on behalf of the court in Tran, went on to state that “[t]he presumption exists to ensure that laws will only apply retrospectively where Parliament has clearly signalled that it has weighed the benefits of the retrospectivity with its potential unfairness.”
In Bolotenko, the court observed that there is no express provision in the SLRA which permits the retroactive application of sections 15(a) and 16, and also found that the presumption was not rebutted by necessary implication. Turning to the Hansard debates of Bill 245, Justice Leibovitch also noted that there was “no clear intention … that the appeal would apply retroactively” and that, at best, the opposite was connoted – that the repeal of section 16 was only intended to apply prospectively.
While the court’s decision in Bolotenko was unprecedented in addressing the potential retroactive application of the repeal of sections 15(a) and 16 of the SLRA, the question of whether a will revoked by law can be revived if the revoking law is repealed was considered relatively recently in Saskatchewan in Vance (Re), 2021 SKQB 320. Like the court in Bolotenko, the Court of Queen’s Bench for Saskatchewan concluded that such legislative amendments presumptively do not apply retroactively, noting the kind of mischief that could result if a will revoked by marriage years earlier were to be revived under such circumstances. Justice Leibovitch agreed, citing Vance on this point and also for the principle that the revival of a revoked will could be inconsistent with the intention of the deceased, who “may have been content to rely on the statutorily-imposed revocation and the consequent intestacy rules for the future distribution of their estate.”
The court’s reliance on Vance is not surprising – our blog post, Retroactive Application of the Law: Reviving Revoked Wills, predicted that the court’s decision could be pertinent to Ontario practitioners in light of the fact that the SLRA, like Saskatchewan’s wills legislation, does not expressly provide for the retroactive application of repealed provisions like sections 15(a) and 16.
Thank you for reading – have a great day!
Suzana.