This Blog was written by Emily Racine, Estate and Trust Consultant with Scotia Wealth Management
Recently, the Ontario government announced changes to some important areas of estate law. One of these changes, which I would like to touch on, is a change to the rules which govern wills and marriages.
Under the current rules, if you were to get married tomorrow, your will would be automatically revoked unless it is declared to be made in contemplation of marriage. This is a legal fact and happens whether you want it to or not. In fact, it even happens whether you are aware of it or not.
The logic behind his rule is the presumption that any newlywed would like their new spouse to benefit from their estate. So if an accident or sudden illness should happen in between the happy day of marriage and when the new couple settles down enough to change their will, the new spouse would not be cut off from the estate.
On the other hand, this rule can create some serious consequences. First, this is not necessarily a well advertised rule. Unless you work in this area or are “in the know” you might get married and be blissfully ignorant of the fact that you must do a new will because your old will is no longer valid. Most people do not necessarily associate marriage and estate planning (that idiosyncrasy is saved for members of the estate and trust community).
Second, with second marriages and children from previous relationships becoming more and more common, and with more couples than ever keeping their financial futures separate, it is no longer accepted logic that spouses will want each other to be the primary beneficiary of their estate.
For example, I had a case where two individuals met in long term care and decided to get married. It was the social event of the season in the residence! As they were both hovering around 90 years old, they had no intentions of combining finances and certainly no intention of replacing their respective children with their new spouse under their wills. However, that is exactly what would have happened had a mere coincidence not sent them my way. The wife-to-be called me, her lawyer, to ask a question about a marriage contract. When I told her that her will would be revoked by her marriage and she should have a new one completed, she was shocked. She was very clear in her intentions that her children should receive all of her estate and that her new spouse would be just fine on his own. He felt the same. I can’t imagine the pain and grief the family would have gone through had she not bothered to pick up the phone to her lawyer to ask a quick question.
The rule-change in Ontario regarding marriage and wills will be more reflective of current societal values and the current needs of the population. This way if spouses want to provide for each other, they will have to make a conscious choice to do so rather than having the government assume that’s what their wishes should be.