In April 2021, the Ontario Government passed Bill 245, the Accelerating Access to Justice Act, 2021, which includes some significant changes to estate law in Ontario. Many of these new rules are set to come into effect in January 2022 and it’s important to be apprised of these upcoming legislative changes. In this article, we discuss some upcoming amendments to the Succession Law Reform Act which will be changed to provide that a marriage no longer automatically revokes a Will in Ontario.
Section 15 of the Succession Law Reform Act specifically provides that a Will or part of a Will is revoked by marriage, subject to prescribed statutory exceptions. These exceptions included the following:
(a) there is a declaration in the will that it is made in contemplation of the marriage;
(b) the spouse of the testator elects 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; or
(c) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate
The purpose of this rule was to protect the new spouse when an individual remarries as the new spouse may not have been named in an old Will. This rule, however, gave rise to what’s known as predatory marriages. That is when someone marries a vulnerable person (typically elderly) for the purpose of exploiting them financially. The Succession Law Reform Act seeks to remedy this practice by revocations of a Will no longer being automatic on marriage.
With the introduction of the Accelerating Access to Justice Act, sections 15(a) and 16 are revoked and the legislation now specifies what happens to parts of a Will when a marriage is terminated. Effective January 1, 2022, section 17 of the Succession Law Reform Act states that marriage no longer revokes an existing will, providing as follows:
17 (1) Subject to subsection (2), a will is not revoked by presumption of an intention to revoke it on the ground of a change in circumstances.
The Accelerating Access to Justice Act, 2021, also amends the Succession Law Reform Act to provide that separated spouses lose appointments and entitlements under a will when a marriage is terminated. Section 17(2) of the amended Succession Law Reform Act provides:
(2) Except when a contrary intention appears by the will, where, after the testator makes a will, his or her marriage is terminated by a judgment absolute of divorce or is declared a nullity,
(a) a devise or bequest of a beneficial interest in property to his or her former spouse;
(b) an appointment of his or her former spouse as executor or trustee; and
(c) the conferring of a general or special power of appointment on his or her former spouse,
are revoked and the will shall be construed as if the former spouse had predeceased the testator
These new rules apply whether the former testator spouse died of intestacy and where they have a Will.
When are Spouses Considered Separated?
The amended Succession Law Reform Act sets out when spouses are considered separated as follows:
(4) A spouse is considered to be separated from the testator at the time of the testator’s death for the purposes of subsection (3), if,
(a) before the testator’s death,
(i) they lived separate and apart as a result of the breakdown of their marriage for a period of three years, if the period immediately preceded the death,
(ii) they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,
(iii) a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or
(iv) a family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and
(b) at the time of the testator’s death, they were living separate and apart as a result of the breakdown of their marriage.
It is important to note that the term “spouse” as used in the Accelerating Access to Justice Act, 2001, and the Succession Law Reform Act only refers to a legally married spouse and does not include a common-law spouse. The changes noted above to the Succession Law Reform do not provide any protections to common-law spouses, who still do not have any automatic entitlement to a partner’s estate when their partner dies intestate.
When an individual dies without a Will in Ontario, their estate is distributed according to the province’s intestacy rules. These rules set out a hierarchy of asset distribution and do not include common-law spouses. This is true regardless of how long the common-law spouses cohabitated, whether they supported each other financially or if they had children together. Other provinces, such as Alberta and British Columbia recognize and provide protection for common-law partners. However, despite the significant changes to estate law discussed above, Ontario still does not provide any further protection for common-law spouses.
At Derfel Estate Law our skilled team of estate lawyers are always up to date on legislative changes and how they may impact your legal position. We will continue to monitor the upcoming implementation of the Accelerating Access to Justice Act, 2021, and how it may impact the estate litigation landscape in Ontario. Our lawyers can help guide you through any will challenges and disputes and work with you to achieve the best possible resolution of your trust matter. Call us at 416-847-3580 or contact us online to schedule a consultation.