Marriage, Divorce and Revocation of the Last Will & Testament

For recent updates regarding this topic, please see this article (published January 2022): Married or Not, Ready or Not: The New Year Brings Changes to the Succession Law Reform Act

Marriage results in automatic revocation of one’s Will save and except in clear circumstances where one’s Will was made in contemplation of the marriage. The contemplation must be evidenced in writing with unequivocal language used to name the upcoming marriage and spouse to be.A divorce on the other hand does not nullify one’s Will but certainly and nonetheless affects the provisions of the will to the extent that the Will may as well be revoked. The reason is essentially that any gifts bequeathed to the spouse will be cancelled requiring a new Will to replace the nullified distributions of the estate property.

It is no answer to address the possibility of divorce by bequeathing estate property to persons other than one’s spouse since Wills which inadequately provide for the surviving spouse are subject to revocation by operation of Law. Specifically, the Family Law Act (hereinafter the “FLA”) allows for a spousal election to be made, the legal effect of which terminates the marriage immediately prior to the testator deceasing such that the surviving spouse be accounted to and provided for under the division of property scheme prescribed by the Family Law Act.

A major change to one’s circumstances be it marriage, divorce, birth of children, the passing of a married beneficiary, etc should suggest a follow up with legal counsel in order that these circumstances be affirmatively addressed through the estate planning documents.