Wills in Contemplation of Marriage

Something that many people do not realize is that, in Ontario, getting married will revoke your will. This rule is found in section 15(a) of the Succession Law Reform Act (“SLRA”). So what
can be done? Section 16 of the SLRA provides a few exceptions to the rule, such as when the will specifies that it is being made in contemplation of marriage or the spouse elects in writing to take under the will and files the election with the estate registrar within a year of the testator’s death.

It may sound a little old-fashioned but it is a useful tool to allow you to put your affairs in good order at a time when you are making plans. If you draw up a will in contemplation of your marriage/civil partnership and follow the guidance provided, then your subsequent marriage/civil partnership to the person you have named, will not revoke that will.
It is especially important to consider drawing up a will in contemplation of a marriage partnership where you already have children from another marriage or relationship. This will help to balance the need to protect your children as well as your future spouse.

You should get proper advice to ensure that the conditions in Section16 are followed and that the will is not revoked upon the marriage partnership. In brief, these conditions are:

1. The will must name a specific person and must not be expressed to be in contemplation generally of a future marriage;
2. The marriage must be due to taking place in the foreseeable future:
   • In the case of Re Gray’s Estate [1963], the testator made a will in 1935 benefiting ‘my wife’. They weren’t married and only living together. They did marry but 25 years later, in
     1960. The judge held that the will could not be in contemplation of this marriage as the marriage took place too long after making the will. The will was thus revoked by the marriage in 1960. The lesson to be learnt, therefore, is to tie the knot sooner rather than later!
   • Conversely, in the case of Pilot v Gainfort [1931], where the testator drew up a will which gave “to Diana Featherstone Pilot, my wife, all my worldly goods”. This will was held to
     be valid on their subsequent marriage three years later. This was due to it being a shorter period and there was the added element that the testator could not marry until it was presumed by law that his first wife was dead (she had disappeared some years earlier).
   • N. B. The aforementioned case law is from the United Kingdom Courts and while not binding, is extremely persuasive upon decisions of Courts in Ontario.
3. Lastly, there must be an intention on the part of the testator that the will should not be revoked by the subsequent marriage and that this is expressly stated in the will.

Although such cases are always interesting, you would not want to be the subject of one of them! Seek professional advice to ensure that the wording in your will is clear and unambiguous to avoid the will being revoked upon your subsequent marriage.