Does Divorce Revoke Your Will?
On Monday, I blogged about the law in Ontario that provides that marriage will revoke your will. But what happens when you divorce?
There is a common misconception that divorce will revoke a will. However, this isn’t actually the case. Pursuant to s. 17(2) of the Succession Law Reform Act [“SLRA”] getting divorced will revoke any gift in the will left to the spouse and any appointment of the spouse as executor (meaning that other beneficiaries named in the will won’t lose out) and the will is to be construed as though the ex-spouse pre-deceased the testator.
Where the ex-spouse is named as executor and there is an alternate named in the will then that individual will become the estate trustee. If not, the appointment of estate trustee will be governed by s. 29 of the Estates Act (I discussed this provision in a previous blog).
The fate of any gift left to the ex-spouse will depend on whether an alternate beneficiary has been named in the will. If not, the next consideration will be what type of gift it was. If it was a specific gift then it will fall into the residue of the estate (and be distributed in accordance with the residue clause of the will). If it was a gift of residue, it will be distributed pursuant to the rules of intestacy as they apply to the testator.
A divorce is a good time to review a will and consider what implications the divorce will have. It is also a good time to consider whether there are any assets that carry with them beneficiary designations (such an RRSP, TFSA, or insurance policy) in favour of the former spouse that need to be changed.
Finally, as I have previously discussed, bear in mind that being separated (and not legally divorced) generally has no impact on an estranged spouse’s entitlement to your estate – so a separation is also a good time to turn your mind to estate planning and whether a will, powers of attorney, and beneficiary designations should be changed (or put in place).
Comments (2)
Read through and enter the discussion by using the form at the endMaureen Daigle - July 21, 2011 4:41 PM
Dear Megan
Thank you for writing about this little known law. It has certainly added to the grief my family has suffered from my brother’s death.
I am confident that now that three provinces have abolished this law, the pressure will be on the other provinces and territories to follow.
Again, thank you for helping me with bringing awareness to this law.
Maureen Daigle - July 21, 2011 7:02 PM
Dear Megan
I also want to thank you for writing about how a divorce does not revoke a will. It confirms what I found in my research for my blog. There was a comment made in the recent Financial Post article that spoke of how a divorce revokes a will, how the current law made sense and that it was the cleanest rule possible. As this is not the case, the succession and will acts are very different depending if you are married, divorced, separated or living common law.
Again, thank you for getting this very important message out.