A change in personal circumstances, however drastic and life changing, does not always have the same legal significance or effect that clients expect. The most obvious yet less known example of this is separation and marriage. Whereas marriage can revoke your Will (and will, where your Will is not made in contemplation of that marriage), separation has no legal effect on your Will. Most people would think and even expect the opposite.
This is because of s. 17(1) of the Succession Law Reform Act (“SLRA”), which provides that a Will is not revoked by presumption of an intention to revoke on the ground of a change in circumstances. Subsection 17(2) provides a caveat, which, in the absence of a contrary intention in the Will, prevents a former married spouse from acting as estate trustee or benefiting from the estate through a testator’s neglect to change their Will. A former married spouse is therefore treated as if he or she predeceased the testator and, in effect, is “removed” from the Will, but only where a final divorce has been granted. Trusts created for children, benefits to other beneficiaries, Henson Trusts and other important provisions are not substantively affected.
Section 17 of the SLRA does not apply in the case of separation, though. If following separation a person passes away without changing their Will to reflect the breakdown of marriage, the post-marriage, pre-separation planning regime remains, which could mean that the former married spouse is appointed estate trustee and is also the (likely main) beneficiary of the estate.
There are additional potential negative consequences that can arise in failing to deal with the post separation situation including the failure to account for support obligations that may exist.
Lesson Learned: It is important to explain to clients the effect and different consequences that a subsequent marriage, separation or divorce may have on an estate plan, remembering that the most important piece of advice to give clients is to ensure that their estate plan always reflects their current intention and to review their plans whenever there is a “significant life event”.
Until next time,