The Effect of Divorces on Gifts to Spouses in a Will
In Ontario, the law is that a Will is revoked by marriage (for exceptions, see section 16 of the Succession Law Reform Act (SLRA)).
If after a testator makes a Will he or she divorces or the marriage is declared a nullity, (a) a gift in a Will of property to one’s former spouse; (b) an appointment of one’s former spouse as executor or trustee; and (c) the conferring of a general or special power of appointment on one’s former spouse, are revoked. The Will is construed as if the former spouse had died before the testator (see section 17(2) of the SLRA). Notably, this law does not apply if a contrary intention appears in the Will.
Divorced couples (or the other beneficiaries under their Will) can take comfort in knowing that they won't be surprised by having a gift no longer intended for a former spouse honoured, which could otherwise reduce the entitlement of others named in the Will.
As reported in the February 2010 edition of Will Power, until not so long ago the common law in Nova Scotia lead to a very different result. A gift by Will to one’s spouse was construed prima facie to refer to the person to whom the individual was married at the time the Will was made, unless circumstances showed that a future spouse was intended. If the individual was later divorced or the marriage was later annulled, this event had no effect on the gift made in the Will. To the likely chagrin of the divorced testator, unless the Will was changed after the divorce, his or her former spouse would still get the gift on the testator's death.
That has all changed with the coming into force of section 19A of the Nova Scotia Wills Act. This legislation brings the law in Nova Scotia in line with that of Ontario and some other provinces. It is good to see growing uniformity being applied in Canada on this issue.
Enjoy the rest of your day,
Natalia Angelini
Natalia R. Angelini - Click here for more information on Natalia Angelini.
