The Effect of Marriage or Divorce on Your Will

By Vanessa DeDominicis

The Wills Estates and Succession Act “WESA” is now a year old. Its sweeping changes to the law in relation to Estate Planning and Estate Administration are still being discussed. One important change is the effect that spousal relationships (or the breakdown of those relationships) can have on your Will.

Who is a “Spouse” Under “WESA”?

Firstly, it is important to take a look at how WESA actually defines a “spouse.” A spouse includes both married and unmarried spouses who have lived with each other in a marriage-like relationship (including a marriage-like relationship between persons of the same gender) for at least two years. This “two year requirement” for couples living in marriage-like relationships to acquire the status of “spouse” and be treated on the same basis as legally married persons is consistent with other BC Acts that define the term “spouse”.

Marriage

Under the old law, a Will was automatically revoked if the Will-maker married after the Will was executed, UNLESS the Will expressly states that it was being made “in contemplation of marriage”. If that clause was inadvertently left out of the Will, the result often caused unnecessary hardship to the surviving spouse and thus, WESA rectified this archaic rule and thankfully now a Will is no longer automatically revoked by the subsequent marriage of the Will-maker.

Pursuant to section 55 of WESA, a Will is revoked by:

(a) another Will made by the Will-maker;

(b) a written declaration of the Will-maker that revokes all or part of a Will;

(c) the Will-maker, or a person in the presence of the Will-maker, destroying the Will with the intention of revoking it; or

(d) an order of the Court, if the Court determines that the consequence of destroying the Will is apparent on the face of the Will and the Will-maker intended to revoke the Will.

All that being said, it is still strongly recommended that Wills be reviewed whenever a major event, such as a marriage or birth of a child, occurs in a person’s life. A marriage is certainly an important life event and consideration needs to be given to spousal provisions in your new Wills. (It should be noted that if a Will was revoked because of marriage before WESA became effective, it will remain revoked under WESA.)

Divorce

Under the old law, a person would be automatically disinherited from their spouse’s Will if they divorced their spouse, their marriage was annulled by the Court or if there was a judicial separation. Section 56(2) of WESA, simply states that an “appointment of or gift to the surviving spouse is revoked if the spouses had ceased to be spouses”. Note the definition of spouse above. Thus, if spouses separate and forget to re-do their Wills, any appointments and gifts to the former spouse made thereunder will be revoked. Again, this is NOT a reason not to update your Wills. If a major life event occurs, such as a separation or divorce, it is very important to have your entire Estate Plan looked at by a lawyer.

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning/incapacity planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com Vanessa practices in the area of Wills and Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.