A Will is a legal document, signed by a person referred to as the testator. It takes effect after the testator’s death. If legally valid, a Will can provide a framework for the orderly administration of the assets of the deceased’s estate and for the distribution of estate property to the testator’s preferred heirs. In contrast, if a deceased’s Will is determined to be invalid, or if the deceased died without a Will, the laws respecting intestate succession govern the administration and distribution of the deceased’s estate. In the result, unintended consequences can occur: persons other than those favoured by the deceased could inherit from the estate.

Wills are an ancient, well-established feature on the legal landscape.  Over time, both judge-made law (known as common law) and statutory law (made by the legislature) have developed legal tools for the application and interpretation of Wills, and for the determination of their validity. Societal changes however drive policy changes, which in turn can impact the evolution of laws overall.  Wills are not isolated from such forces.

There have been a number of significant developments in Ontario laws governing Wills, with amending legislation effective Jan. 1, 2022 and may impact profoundly existing estate planning regimes in unanticipated ways unless they are taken into account.

1. Relaxation of the rules of “strict compliance”

A longstanding regime of “strict compliance,” under a set of formalized requirements codified by statutory law, has governed the validity of Wills at the time when executed or made. By example, unless a printed Will was signed by the testator in the presence of two independent witnesses, or if it was modified later by the testator without the required formalities of execution being met — in all likelihood the Will would be held as invalid, if challenged or submitted for probate. A reviewing judge of the Ontario Superior Court of Justice now is empowered to exercise discretion to validate what otherwise would have been an invalid Will for failure to abide by the strict formalities of making and executing a Will. Now, if a judge is satisfied that a document or writing, that was not properly executed or made, sets out the testamentary intentions of the deceased or an intention of the deceased to revoke, alter or revive a Will of the deceased, the judge may accept the document as a valid and fully effective Will.

Notwithstanding this potential easing of the harsh repercussions of failing to abide by the rules of strict compliance, testators are cautioned not to test the limits of judges’ acts of discretion to save their estate plan from failure. To best promote the chances of a successful implementation of an estate plan, sound advice is to ensure that a Will is validly made and executed properly, with all the customary formalities being scrupulously honoured from the outset.

2.  Marriage no longer automatically revokes a Will

Formerly, the pre-existing Will of a person generally was deemed revoked at law upon that person’s subsequent marriage. The legislative objective supporting this automatic revocation presumably was grounded in a desire to protect the interests of a surviving spouse where the testator failed (likely forgot) to make a fresh Will to account for their changed family circumstances: with the Will revoked, the surviving spouse at least stood to receive some estate property under the laws governing intestate succession.

Commencing this year, the act of marriage no longer automatically revokes a prior Will.

The motivation for this change appears directed toward addressing an unfortunate phenomenon occurring within our society: the need to protect the heirs of vulnerable persons, oftentimes the elderly, from so-called “predatory marriages.” In this context, the “predatory” spouse is one who unscrupulously marries a vulnerable person with the principal objective of achieving personal financial gain through the laws of intestate succession, when that vulnerable person expectedly dies before they do. Thus, preferred heirs rights of inheritance in the pre-existing Will are now preserved.

Now, newlyweds of whatever age, who have pre-existing Wills, actively should consider whether any updates to their respective Wills may be warranted as a result of their marriage, if they wish to provide adequately for their surviving spouse upon death.

3. Separated spouses now may be treated more like divorced spouses

The legal termination of a marriage, by divorce or declaration of nullity, can have significant ramifications regarding Wills. If a testator, being a former spouse, had a Will which pre-dates the marriage termination but which remained unchanged at the time of that testator’s death, current statutory law provides generally that the former spouse automatically loses the benefits and entitlements provided to that former spouse in the deceased’s pre-existing Will. The surviving former spouse generally is deemed to have predeceased the testator and to have lost any rights to inherit gifts of property from the deceased’s estate or to an appointment as executor of the deceased’s Will.

The objective of this current law presumably is to protect against the surviving divorced spouse from inadvertently inheriting from the estate of the deceased former spouse. Otherwise, divorce by itself does not revoke a prior Will. Neither does the legal separation of spouses.

The law, affecting the rights and entitlements of divorced spouses only, formerly did not apply whatsoever to separated spouses. It did not apply to those spouses who may have been separated for longstanding periods, even decades — but who had failed, for whatever reason, to finalize their divorce or to update their estate plans with a fresh Will. This sometimes led to seemingly harsh and unintended consequences for the natural heirs of deceased, separated spouses. An effective “ex-spouse” still could benefit handsomely, to the detriment of the deceased’s truly preferred heirs. Such a Will perhaps was executed when the marriage was fully intact, by which the since-separated spouse may have been named as the principal beneficiary, but which the deceased neglected through inadvertence to revoke by making a fresh Will.

With the recent legislative changes, separated spouses now will be treated more like divorced spouses respecting their Wills. A caveat though is that not all separated spouses will meet the new criteria set forth in the legislation and thus be able to benefit by the protective revision: many may not qualify. Separated spouses are cautioned to seek legal advice in this regard and to revise their own estate plan to protect their and their preferred heirs’ interests.

(Eric J. Bundgard is a lawyer practising in estate planning and estate litigation with the Toronto-based law firm of Evenson Bundgard LLP. This edited article is reprinted with permission from Your Catholic Legacy newsletter published by the Development Office of the Archdiocese of Toronto.)