The new year brings with it some important changes to Ontario estates law.
Let’s start with marriage, and its impact on the validity of an existing Ontario will.
As of January 1, 2022 marriage does not automatically revoke an existing will. In the past, a will made before marriage was considered revoked when a person married, unless it specified that it was made in contemplation of marriage.
If you are surprised by this information, you are not alone! What won’t surprise you is that this automatic revocation caused a lot of problems. Not only were many people unaware that marriage revoked a will, but in some cases a person who married was subsequently unable to make a new will.
In Ontario, the standard for personal (cognitive) capacity to marry is lower than that which is required of a person making a will. This means that it is possible for a person to have the capacity to marry but lack the capacity to make a will. There have been some extremely challenging cases involving people with well thought out, carefully drafted wills who subsequently married, and as a result their wills were unintentionally revoked. Where the individual was unable to make a new will, their estate was governed by the intestacy rules, something they obviously tried to avoid when they were capable. Fortunately, marriages entered in to as of January 1, 2022 will not automatically invalidate a will.
The effective date of January 1, 2022 is important to keep in mind. This change to the law is not retroactive and applies only to marriages that take place on or after that date.
If you aren’t sure if your will is valid, or you think it is time for an update, please get in touch. Initial consultations are always free of charge.