Province should revisit issue of will revocation on marriage

Ontario should join the growing group of Canadian common-law jurisdictions that have done away with a law that automatically revokes the wills of people who marry, says Toronto wills and estates lawyer Lisa Laredo.

Alberta did away with the law in 2012, except in cases where the will expressly intends revocation on marriage, and British Columbia followed suit in 2014 as part of a major revision of its succession legislation. Now, Laredo says Ontario’s provincial government should do the same by amending its Succession Law Reform Act.

“I think Ontario needs to revisit the issue, and look at whether the purpose of the revocation is not already accomplished by other means,” says Laredo, principal of Laredo Law.

The rule has its roots in the 18th Century, when automatic revocation upon marriage was viewed as a necessary protection measure for new spouses, says Laredo. However, equalization under the Family Law Act along with spousal support legislation have filled that gap for ensuring spouses are taken care of, she says, leaving the revocation provision superfluous in many cases.

Laredo tells the law, as it stands, might make sense in the case of relatively young people marrying for the first time, since a new will may often be required to reflect the new commitments that traditionally come with marriage.

However, she says the flaws in the current approach become obvious in cases of second marriages occurring later in a testator’s life, when grown-up children have already been accounted for in an existing will.

“If you have a person in their 70s or 80s tying the knot, all of a sudden they’ve just disinherited their children. In some cases, these will be children who have been taking care of their parents right up until the marriage,” Laredo says. “Bequests to friends or charities are also affected.”

While this affected group may have been a small one in times gone by, society has changed, says Laredo, and estates law should catch up.

“Because people are living longer, quite a lot of people who already have families are going to get married for a second time. They’re way past the point of having children, so they don’t always turn their minds to the will,” she says.

If a testator dies without formulating a new will, legal problems can mount, with disinherited beneficiaries under the revoked version more likely to object to the new outcome.

“That takes up court time,” Laredo says. “It’s a huge issue, especially when there’s more wealth involved.”

Laredo says the effect of voiding wills on marriage would not be concerning, except for the fact that so few people are aware of the law.

“That may be the biggest downfall,” she says. “I do a lot of trusts and wills — my clients run the range of backgrounds and ages, and I’d say about seven out of 10 are unaware. That’s huge.”

Even if the testator becomes aware of the absence of a valid will in time, Laredo says it’s possible they will be stranded without one. This is due to the different standards of capacity for getting married and signing off on a new will.

“If someone is much older, that could pose problems in terms of capacity. They may not ever get to make a new will because the threshold for being able to say ‘I do’ is much less burdensome than the test for making a will,” Laredo says.

If legislators do act to end the automatic revocation of wills on marriage in Ontario, Laredo says an awareness drive would be needed to let people know that old wills will still remain in force despite new marriages. In the meantime, she has this message for recently married couples with newly voided wills: “Get to making a new one.”