The provincial government should think twice before ending the automatic revocation of wills on marriage.
The Law Times reports that Attorney General Doug Downey is considering scrapping s. 16 of the Succession Law Reform Act, a provision that makes Ontario one of only a few jurisdictions in which marriage automatically revokes any will that either spouse had in place before tying the knot – although the section does contain an exception for wills made “in contemplation” of the marriage.
The suggestion to repeal s. 16 is one of several in a review of provincial estates law, and would be part of crackdown on predatory marriages, according to Downey.
“We want to make sure that we’re protecting vulnerable people,” he told the legal news outlet, noting that the idea dates back to another era altogether when the wife and her family were regarded as in need of protection.
“This is something that’s been around for hundreds of years. And now that we’re in a position where we have a vulnerable population, the logic around the original rule may not be appropriate,” Downey added.
Of course older people who may soon become mentally incapacitated are susceptible to being taken advantage of in predatory marriages, but I think they need to be dealt with on a case-by- case basis.
Otherwise, there is a danger that the government could end up throwing out the baby with the bathwater, since our elderly citizens are not the only potentially vulnerable members of our population.
In my view, s. 16 provides an important safeguard for any children and the new spouse of a married person. By wiping the slate clean, the provision ensures that they are protected by default in the event of intestacy.
If no new will was ever made, the SLRA ensures that the deceased’s surviving spouse gets the first $200,000 from any estate, with the remainder divided between the spouse and any surviving children. When there is just one child, the assets are split equally with the spouse.
For cases with more than one child, the spouse gets one-third of the amount over $200,000, and the remaining two-thirds are divided equally among all the children.
Still, intestacy is generally not a desirable outcome, since the Act makes no provision for the individual circumstances of the deceased, which can lead to issues for those with anything but a conventional family arrangement.
Whatever the current or future status of the SLRA, a major life event such as marriage is a great time to revisit your will and make sure all of your original choices still make sense.
Other landmark moments – think the birth of a child, divorce, or winning the lottery – should also prompt a fresh look at your estate plan.
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