In Ontario, s. 15 of the Succession Law Reform Act (the “SLRA”) provides that a Will is revoked by a subsequent marriage of the testator. Practitioners who are meeting with a client in the weeks leading up to his or her marriage will often prepare a Will that contains a statement that the Will was made “in contemplation of the marriage”, which will ‘save’ the Will from revocation by the marriage. Otherwise, if a client dies with a Will that was prepared before he or she was married, and has not since executed a new Will, typically, an intestacy arises, to the benefit of the testator’s spouse.
However, there may be instances when the surviving spouse wants the Will executed before marriage to be upheld. In this instance, the spouse may exercise their right to elect to take under the Will, pursuant to s.16(b) of the SLRA:
16. Revocation by marriage – A will is revoked by the marriage of the testator except where,
(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;
Of note, exercise of this spousal election saves the entire Will, not just the gift to the spouse.
Estate practitioners are often surprised to learn that the “marriage revokes a Will rule” is not steadfast, and that there is a different type of spousal election that may arise on death, other than an election for equalization under the Family Law Act. However, one can imagine a number of scenarios where a surviving spouse may prefer that a Will executed before marriage (without language to the effect it was made in contemplation of marriage) be upheld, rather than to take under intestacy:
- Where the Will names the surviving spouse as the beneficiary of the residue of the estate, and the deceased has children (either from a previous relationship, or with the surviving spouse). If the Will is revoked, under the SLRA’s intestacy rules, the spouse is entitled to the preferential share of the estate (the first $200,000), and then must share the residue of the estate with the children of the deceased (the proportions of the share depend on the number of children who survive the deceased).
- Where the Will was prepared to minimize tax consequences. The testator may have, for example, had dual Wills prepared to minimize the payment of probate fees on death, or included charitable gifts to minimize the income tax payable on his or her death. The surviving spouse may wish to have tax-planned Wills upheld, rather than take under an intestacy, but have the estate subject to full probate fees and income tax consequences.
- Where there are gifts that the surviving spouse wishes to honour. The deceased may have carefully planned his or her Will to provide for those people in his or her life who he or she cared for. While the surviving spouse could make gifts to these people after receiving the residue of the estate, there may be instances where, for sentimental reasons, the spouse wishes to ensure that the gift truly came from the deceased and that the deceased’s wishes are honoured, by having his or her Will upheld. Similarly, where the Will makes provision for individuals who could otherwise bring a claim for Dependent’s Support under the SLRA, the surviving spouse may wish to have the Will upheld as a defensive measure to prevent such claims from being brought against the estate.
To have the Will upheld under s.16(b) of the SLRA, the surviving spouse must first file an election with the Estate Registrar of Ontario. Interestingly, there is not a prescribed form for this election. Proof of the filing of the election should be included with the Application for Appointment of Estate Trustee with a Will – this may be done by way of affidavit of the professional who submitted the election.
While the scenario that gives rise to the use of s.16(b) is not common, estate practitioners should remember that this option to elect exists, and that it may one day prove a useful tool in the administration of an estate.
 SLRA, s. 16
 Note – there is a third exception to a Will being revoked by marriage, set out in s.16(c) of the SLRA: “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.”