In Ontario, a marriage will revoke a Will unless that Will is made in contemplation of the marriage. These rules vary from province to province.
Assume that Mr. Black and Ms. White are a widow and widower. They marry. Neither has a new Will prepared. Mr. Black dies on the honeymoon. Mr. Black has died intestate (without a valid Will) and if he lives in Ontario his estate is divided as follows:
o Ms. White will receive the first $200,000 and one-third of the balance. If Mr. Black had two or more children, they will divide the remaining two-thirds.
o If Mr. Black had one child, Ms. White would receive the first $200,000 and 50 per cent of the balance. The child would receive the balance.
o If Mr. Black had no children, Ms. White would receive everything.
Each province has different rules for intestate succession
In Ontario, where parties divorce, any bequest of property to a former spouse and the appointment as executor are revoked. The Will is read as if the former spouse had predeceased. If the parties are simply separated but do not divorce, there is no such presumption. A person must amend their Will to remove that benefit.
Except for marriage and divorce, there is no presumption of an intention to revoke a Will or change a bequest on the grounds of a change in circumstance.
There are many circumstances in which a Will should be reviewed:
1. Birth or death of a beneficiary: The birth of a new child does not necessarily require a new Will because most Wills will refer to “my children” or “my issue” (meaning lineal descendants) instead of naming each. The reason to use a generic description is to avoid the expense of amending a Will if a child has died or a new child has been born.
2. Special needs dependents: If a child has developed special needs, that child may require greater benefits than the others.
3. Trusts for children: Many people’s Wills provide trusts for their children. If nothing is stipulated in the Will, a child will receive any benefits when he or she reaches the age of majority, 18 in most provinces. However, allowing a child to access a significant inheritance at a young age is not prudent and may lead to dissipation of that wealth. It is popular to provide that a child receive an inheritance in instalments, starting at age 25 and extending to age 35 or 40.
4. Sale of an asset: If, for example, a testator (someone who has written a Will) has sold a cottage which is the subject of a bequest, the testator should decide if a substituted gift should be provided to the beneficiary who will no longer receive the cottage.
5. Growth or diminution of wealth: If a person’s estate has increased or decreased substantially, the testator may wish to revisit the Will to ensure that the benefits are still appropriate. If the estate has decreased, the testator will want to ensure that his or her dependents are adequately provided for.
6. Elderly parents: If a testator is currently supporting an elderly parent, the Will should be amended to include a direction to ensure that support is continiued.
While there is no general rule of thumb, a review every five years will go some way toward ensuring a Will remains current and suitable.
(Rocchi is a partner at Miller Thomson in the law firm’s estate planning, trusts and succession law group and pension group.)