Oct 8, 2025
I love hearing from readers of our blogs. It’s exciting to know people are reading and thinking about them, but beyond that, it’s such a pleasure to connect with other lawyers and discuss the law, outside of any specific dispute.
In my blog of January 9, 2024, When Does Marriage Revoke a Will, I puzzled about the Bill 245 amendments to sections 15 and 16 of the Succession Law Reform Act, which repealed the sections on marriage revoking a Will, and when those amendments could be said to take effect. Did they apply only to marriages after December 31, 2021 (the date the amendments took effect), only to Wills made after that date, or only for Deceased people who died after that date? Without a transition provision, it was not entirely clear.
Since writing that blog, I have heard from counsel who argued the case that the court has decided this issue. In Bolotenko v Wright Estate, 2025 ONSC 1154, the estate trustee, Aleksandr Bolotenko, sought direction from the court on whether Bill 245 applied retroactively. In that case, the Deceased died in April 2022 (after the SLRA amendments), his Will was dated March 8, 1999, and he married in February 2003. The estate trustee sought direction on whether the Bill 245 applied retroactively such that the Will was not revoked. The court held that there was no retroactive application: any marriage before January 1, 2022 had the effect of revoking any existing Will.
Now comes an interesting twist, flagged for me by another lawyer/blog reader. If the repeal of SLRA section 15(a) (which previously stated that a Will is revoked by marriage) only applies to marriages after December 31, 2021, does the repeal of the saving provisions in section 16 have a similarly delayed application?
Section 16 was repealed in its entirety by Bill 245. Previously, it set out specific situations where a Will could remain in effect despite a subsequent 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.
Logically, it seems that the timing of the section 16 revocation must follow that of section 15(a). If marriages before January 1, 2022 revoked existing Wills, then the section 16 provisions remain in place to save such Wills that would otherwise be revoked. The court in Bolotenko v Wright Estate applied as much. The court at paragraphs 1-2 considers whether the Will had any saving provision as described in the old section 16 (a). This seems to suggest that section applies in its entirety to pre-January 1, 2022 marriages. For example, a spouse could continue to elect under the old section 16(b) to take under the Will, regardless of its revocation.
I look forward to reading and hearing more about the court’s consideration of these provisions!
Laura Cardiff
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.
Feb 20, 2025
On February 6, 2025, Cara Zacks was a panelist at the Ontario Legal Conference hosted by the Ontario Bar Association. Cara Spoke on a panel with family law lawyer Kelly Jordan on the subject of Marital Contracts After Death. The Panel was moderated by family law lawyer Ibtisam Jemal.
Cara presented on issues related to the enforceability of a marriage contract after death. In particular, she discussed setting aside provisions in a marriage contract through which a spouse releases the right to claim dependent support under the Succession Law Reform Act or to elect equalization after the death of a spouse.
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.
Jan 6, 2025
One of my favourite parts of working as an estate litigator is that our files intersect with so many areas of law. Our clients come to us for our expertise and advice on estate and capacity law, but their complex legal problems often require answers outside our expertise.We work with our clients to find experts in areas of law like tax, employment, family, business, and real estate law, to provide a comprehensive answer to our clients’ legal problems.
Not surprisingly, family law regularly interacts with estate litigation. For example, a surviving spouse may elect to make an equalization payment claim under the Family Law Act rather than take what they are entitled to under their spouse’s will. A surviving spouse may choose to make an equalization claim and, at the same time, a dependant support claim under the Succession Law Reform Act.
Tax law often comes into play in estate litigation. When you die, your assets are deemed to have been disposed of, potentially triggering capital gains tax. When working on a piece of estate litigation, we often work with expert tax lawyers to help us assess the estate’s tax liabilities. When we help our clients negotiate a settlement, we consult with tax experts to help beneficiaries and estate trustees minimize tax liabilities.
Corporate law issues often arise in estate litigation, as well. Often, we act as or represent an estate trustee for estates that own businesses. When this is the case, we may consult a business lawyer to help us find the most practical way to transfer or sell the business or to determine its assets and liabilities.
Employment law is another area that regularly comes up in estate litigation if the deceased owned a business. In such cases, the estate trustee may have to worry about employment contracts as well as ongoing wrongful dismissal claims.
Finally, real estate law frequently intersects with estate litigation. Whether it’s a family home, cottage, or investment property, disputes often arise over ownership of the property, the property value, or whether an estate property should be sold (and for how much) or kept in the family.
Estate litigation does not happen in a vacuum. Although our clients may retain us to assist with a will challenge or a dependant support claim, for example, other areas of law are sure to pop up over the course of the litigation. It’s our job to find lawyers with the right expertise to work with so we can, together, provide helpful and tailored advice to reach a resolution as quickly and efficiently as possible.
Cara Zacks
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.
Jul 7, 2023
Before January 1, 2022, Ontario courts would only consider a Will valid if the Will complied with the strict, technical formalities set out in the Succession Law Reform Act. For example, under the SLRA, a Will was only considered valid if the Will was in writing, if it was signed by the testator at the end of the document, and if it was witnessed by two or more people.
However, with the recent addition of section 21.1(1) to the SLRA, even Wills that don’t meet those formal requirements may be considered valid, as long as the court is satisfied that the document “sets out the testamentary intentions of a deceased”. This means the court now has the power to order that a document is as valid and as effective as a Will, even if it does not meet the requirements of a Will. This new section of the SLRA applies to Wills of people who died after January 1, 2022.
For a while, we didn’t have many examples of people relying on section 21.1(1). Now, however, we are starting to see the court interpreting section 21.1(1) in some recent decisions.
As expected, the court has relied on cases from other provinces that already introduced provisions similar to section 21.1(1) of the SRLA. In a series of recent decisions from the Ontario Superior Court from June 2023, the court found that even when a Will wasn’t witnessed at all or signed by the testator, the Will was valid because it recorded a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.” If it is clear from the facts and evidence that the deceased intended the document to be a proper Will, it seems like the Ontario court will have little difficulty finding the document to be a valid Will.
In these first few cases interpreting section 21.1(1) of the SLRA, all the documents validated as Wills looked very much like a proper Will, but for a few key issues, like missing signatures. Only time will tell how far the court will go to validate documents that may set out someone’s testamentary intentions, but that stray even farther from the technical requirements of a Will.
Cara Zacks
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.
