Your existing Will is invalid if you marry after the Will is entered into. The exception to this rule is if you are able to prove that the Will was made in contemplation of an upcoming marriage.
The Will MUST contain a sentence referring to the contemplating marriage and naming your soon to be spouse. Without a statement like, "This Will is made in contemplation of my upcoming marriage to John or Jane Doe," the Will is automatically revoked when the marriage occurs, unless you make a new one.
When a person dies without a Will, it is called "intestory". If an intestory occurs, your beneficiaries (spouse and/or children) have their rights and gifts, if any, determined by the Superior Court of Ontario in accordance with the provisions contained in the Succession Law Reform Act, which means your wishes are not given regard, the rules under the Act prevail.
So if you marry make sure you plan to have a new Will as part of your wedding plans, either prepared in contemplation of marriage. If you have married don't forget to have your lawyer prepare a new Will.
A marriage will automatically revoke a pre-existing Will; a divorce will not. That does not mean that a divorce will not have an impact on your Will.
A divorce will invalidate any provisions in your Will that deal with your ex-spouse. You may tend to think that this solves the problem. However, the fact that several provisions are now invalid may make your Will incomplete or in the worst case scenario - invalid.
A separation without a separation agreement properly drawn by a lawyer has no effect on your Will. The worst case is dying after a long separation with no separation agreement. In that case the Succession Law Act takes effect, and the government in effect decides how your estate will be divided. Your (ex) spouse will get a fixed sum of money and a further share for for your children unless there are no children, then the spouse gets it all.
I have recently been in court on a matter involving an estate where the husband and wife were separated for over 25 years but, without a divorce, Twenty years ago he bought a farm, which tripled in value, which she never set foot on. They were not even civil with one another and on his death because he did not have a Will, the wife, who he strongly disliked, became a millionaire. That certainly wasn't what he wanted.
All of this could have been prevented by having a lawyer prepare a Will.
My next Blog will address other Will considerations on separation, divorce and disinheriting family members.
A will is a written legal document which states an individual's wishes, in regard to their assets, and how they should be managed upon their death.
A will usually consists of the assets the individual had at the time of death. Preparing a will allows a person to determine, before death, how their property, household belongings, savings, investments and personal items will be divided among the beneficiaries.
Many individuals try to save money by writing their own wills. This type of will is known as a Holographic Will. A person can prepare the will themselves, in their own handwriting and sign. In this type of will the individual does not require a witness. Holographic Wills are not recognized in all provinces in Canada. If an individual is considering writing their own will, they should carefully research which information and details must be included in the will. A will written without the correct level of detail can often be challenged or determined legally invalid.
If you are 18 years or older, own property, have a spouse or children you should consider having a Formal Will prepared. If you have no close friends or relatives, but have property and investments you should also have a will in place.
A Formal Will can do such things as:
- Name your executor
- Name the individuals you wish to receive your personal property
- Name who will receive heirlooms, jewelry and collections
- Name any organizations you wish to leave money or property to
- Name who will assume responsibility for the family business
- Identify legal guardians for any unmarried children you have under the age of 18 years
- Identify legal guardians of any disabled children over 18 years
- Identify provisions for the care of any member of the family with special needs
- Help to reduce extra costs for spouses and family members after your death
- Limit fighting over your estate
Dying without a Will is called dying "intestate". In such cases the courts decide how your estate is distributed. Your property is all treated the same and there will be no special provisions given to specific items or heirs. This often leads to disagreements between family members. If the family is not in agreement with the court's decision, it may be necessary to sell all belongings and property to ensure the distribution of value which is required by law.
An experienced lawyer can assist you through the process to ensure that your spouse, children and family have little to worry about in managing your estate after your death. Protect your family and estate with the safeguard of a will.