Is my will still valid if I get married?
Author: Josée M. Berthelet
Date: January 18, 2022
Prior to March 2020, if you made a will in Saskatchewan, and later got married or became a common law partner, your will would be revoked. In March 2020 the Wills Act, 1996 (the “Act”) was amended and changed this rule. Before March 2020, sections 16 and 17 of the Act read as follows:
16 No will or any part of a will is revoked other than:
(a) in accordance with section 17;
(b) by any other will executed in accordance with this Act;
17(1) A will is revoked when:
(a) the testator marries;
(b) the testator has cohabited in a spousal relationship continuously
for two years;
In March 2020, s. 17 of the Act was repealed, and so ss. 16(a) was also repealed in part. The effect is that when a testator now makes a valid will, their subsequent marriage or cohabitation in a spousal relationship no longer revokes that will.
In Vance (Re), 2021 SKQB 320, a case decided in December 2021, the court was tasked with determining whether these legislative amendments have retroactive application to wills prepared before the amendments. The relevant facts of this case are as follows:
March 2004: the testator had a child;
October 2004: The testator made a will, giving his entire estate to his aunt;
2010: The testator had another child;
2012: The testator began cohabitating in a spousal relationship with his second child’s mother;
2014: The testator’s 2004 will was revoked by operation of s. 17 of the Act, as this was the time that he became a common law partner;
January 2020: The testator and his common law spouse separated;
March 2020: Legislative amendments to the Act took effect; and
June 2021: The testator died.
The court had to determine whether, by operation of the repealing of s. 17 of the Act, the testator’s 2004 will was never revoked, or alternatively, was revived. Ultimately the court held that since there is no explicit provision indicating the retroactive application of the repeal of s. 17 of the Act, the amendments do not apply to wills already properly revoked by s. 17 of the Act prior to March 2020. In other words, any will revoked by s. 17 before March 2020 remains revoked. Any will made after March 2020 is no longer revoked by the testator’s later marriage or common law relationship.
In Vance (Re) the effect of the revocation of the testator’s 2004 will, since he had not made any subsequent will, is that his estate will be distributed in accordance with the Intestate Success Act, 2019. Accordingly, it is likely that the testator’s intention to benefit his aunt as outlined in his 2004 will, will not be realized.
The conclusion to be drawn in consideration of Vance (Re) is to pay close attention to when your will was drafted, if you have recently been married or have recently become a common law partner. In order to realize your intentions, you may need to draft a new will.
This article is not a substitution for legal advice. If you have questions about your own circumstances, we encourage you to consult a lawyer.
Lawyers at Wardell Gillis who practice in Wills and Estate Planning: