Recent amendments to the Succession Law Reform Act have changed the impact of marriage and separation on an existing Will.
Prior to January 1, 2022, marrying after the date a Will was signed caused that Will to be automatically revoked. To avoid revocation, the Will had to provide that it was made in contemplation of that specific marriage, the spouse of the deceased could sign an election to have the estate administered pursuant to the terms of the existing Will, or the Will must have been made under a power of appointment subject to certain conditions.
As of January 1, 2022, the provisions of the Succession Law Reform Act that revoked a Will due to a subsequent marriage were repealed. Now, Wills that are made before marriage will not be revoked by a subsequent marriage. It appears that these provisions will be applicable only to marriages taking place after January 1, 2022; a Will that was previously revoked by marriage under the old provisions of the Succession Law Reform Act will not be "revived" by the amendments to the legislation.
Prior to January 1, 2022, divorce had the effect of causing a Will made prior to the divorce to be read as though the ex-spouse had predeceased the testator, revoking any gifts to a former spouse and revoking any appointment of a former spouse as executor or trustee. No such provisions existed for parties who separated after the date of the Will but never divorced. Thus, an ex-spouse from whom the deceased was separated but not divorced could still receive an inheritance and/or act as the estate trustee under the deceased's Will if the deceased had never updated their Will following the separation.
As of January 1, 2022, the Succession Law Reform Act is amended to extend the same treatment to spouses who have separated. The parties must have either:
- been living separate and apart as a result of the breakdown of their marriage for a period of at least three years, if the period immediately preceded the death
- entered into a valid separation agreement under the relevant provisions of the Family Law Act
- obtained a court order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage or
- obtained a family arbitration award with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage
In addition to meeting one of these four factors, the parties must also have been living separate and apart as a result of the breakdown of their marriage at the time of the testator's death. These provisions apply to Wills made prior to January 1, 2022, but only to separations that occur on or after January 1, 2022. Therefore, parties who separated before January 1, 2022 should still ensure that they update their Wills.
Regardless of these amended provisions, it is good practice to read through your Will every few years and following major life events (births, deaths, marriages, and separations/divorces etc.) to make sure that the provisions of the Will still reflect your situation and wishes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
