WHEN DOES MARRIAGE REVOKE A WILL?
On January 1, 2022, various amendments to the Succession Law Reform Act (“SLRA”) came into effect as part of Bill 245, the Accelerating Access to Justice Act. As part of those amendments, Bill 245 repealed subsection 15(a) and section 16.
Before December 31, 2021, sections 15 and 16 of the SLRA provided that a testator’s marriage had the effect of revoking their Will, except in some specific circumstances:
Revocation generally
15 A will or part of a will is revoked only by,
(a) marriage, subject to section 16;
…
Revocation by marriage
16 A will is revoked by the marriage of the testator except where,
(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. R.S.O. 1990, c. S.26, s. 16.
In the current version of the SLRA, those provisions simply do not exist. A reader will find instead the note “Repealed”, followed by the citation for Bill 245, as shown below:
Revocation generally
15 A will or part of a will is revoked only by,
(a) Repealed: 2021, c. 4, Sched. 9, s. 2.
(b) another will made in accordance with the provisions of this Part;
(c) a writing,
(i) declaring an intention to revoke, and
(ii) made in accordance with the provisions of this Part governing making of a will; or
(d) burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it. R.S.O. 1990, c. S.26, s. 15; 2021, c. 4, Sched. 9, s. 2.
16 Repealed: 2021, c. 4, Sched. 9, s. 3.
There is no transition provision, meaning there is no provision specifying that marriage revoked a Will for marriages prior to January 1, 2022, or any other date. The law for decades was that marriage revoked a Will. But, in the current law there is no indication that was ever the case.
This is in contrast to other changes to the SLRA made by Bill 245, where the amendments included specific language indicating when the changes are to take effect. For example, Bill 245 added section 43.1 to the SLRA, which provides that separated spouses do not inherit on the intestate death of their former spouse. The transition provision for this section specifies that section 43.1 only applies if the event that constitutes the separation (for example, the day the couple began living separately, or the date of their separation agreement) occurred after December 31, 2021.
What is the effect of the complete revocation of sections 15(a) and 16, with no transition provision? If a person made a Will in 2020, married in 2021, and died in 2022, was their Will revoked by marriage, because the law at the time of the marriage was that the Will was revoked? Or, is the applicable law that at the time of death, and therefore the revocation-by-marriage would only take effect if the person had died before December 31, 2021, when sections 15(a) and 16 were in force?
The consensus has been that the relevant time is the time of marriage. Commentary on the revocation provisions consistently states that the changes brought in by Bill 245 only apply for marriages on or after January 1, 2022. The current probate forms draw a distinction between marriages before and after Jan 1, 2022: the applicant is required to say if the marriage was before or after that date, and if before, to explain why a prior Will was not revoked.
No court decision has addressed this question directly, but in the reported case law, judges seem to operate on the same basis: if sections 15(a) and 16 were in effect at the time a person’ married, their existing Will was revoked unless the section 16 exceptions applied.[1]
But does this make sense?
The general rule is that a Will speaks from the time of death, and before death a Will is merely a piece of paper. Courts will not consider the validity of a testamentary document until after the person has died. It seems counterintuitive, then, for the applicable legal landscape in this situation to be the time of marriage, rather than the time of death.
Further, if the legislature’s intention was for the pre-2022 marriages to continue to be treated as revoking prior Wills, would the legislature not simply have amended sections 15 and 16 to include a transition provision, specifying it only applied to marriage prior to Bill 245 coming into effect?
The law for decades was that marriage revoked a Will. But, in the current law there is no indication that was ever the case. The complete revocation of the provision suggests that the legislature intended for any Will for a Deceased who died after December 31, 2021, to have survived a subsequent marriage.
The answer will ultimately be a matter of statutory interpretation in a case where the issue is before the court. The principles in this area are complex, and are detailed at length in E.A. Driedger’s article “Statutes: Retroactive Retrospective Reflections“, 1978 CanLIIDocs 18, for anyone looking for some light reading. Sullivan on the Construction of Statutes, by Ruth Sullivan also contains an entire chapter on the “temporal application” of statutes, and how it is to be determined.
In general, there is a presumption against legislation applying “retroactively,” defined as applying “so as to change the past legal effect of a past situation.” There is also a presumption against the removal of already vested rights. However, there is an important distinction drawn between retroactive application, which changes the past effects of past situation and legislation, and what is often referred to as “retrospective” legislation, which attaches new consequences for the future to an event that took place before the legislative change.[2]
Arguably, Bill 245 does the latter, and merely changes the current effect of a past marriage. No right can be said to have vested prior to the testator’s death, since the Will does not create any rights, or have any effect prior to the testator’s death.
Nevertheless, what a court decides remains to be seen.
[1] See, for example, Estate of Harold Franklin Campbell (Re), 2023 ONSC 4315 (CanLII) at para 5. It was an agreed-upon fact in that case that the Deceased’s marriage in the year 2000 had revoked his last Will. The issue was whether it was subsequently revived.
[2] See Benner v Canada, [1997] 1 SCR 358 at paras 39-40, citing Driedger.
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.