What is the impact of divorce on a Will?

Estate lawyers advise their clients that there are key milestones in life that should trigger a review of estate plans and, in particular, Wills. Marriage, the birth of a child, a dramatic change in wealth, separation and divorce are some examples. It comes as a surprise to many people that marriage automatically renders a Will signed prior to the wedding invalid (unless the Will was entered into “in contemplation of marriage” and this is specifically referenced in the Will).  Perhaps more surprising to people, however, is the fact that the breakdown of a marriage – either separation or final divorce – does not have the same effect. Separation has no effect on a Will whatsoever.  In the absence of a separation agreement limiting a spouse’s entitlement,

therefore, a gift under a Will remains valid regardless of the length of the separation.  In fact, the Succession Law Reform Act specifically provides that a Will is not revoked by a presumed intention based on a change of circumstance (section 17(1)).  What this means is that a Judge won’t have the authority to invalidate a gift to your good-for-nothing husband who left you 10 years ago if you didn’t bother changing your Will, entering into a Separation Agreement or finalizing a divorce.While divorce also does not invalidate a Will, it does trigger changes that make sense to clients.  First, divorce invalidates gifts in the Will made to the ex-spouse.  Second, it revokes the appointment of the ex-spouse as Estate Trustee.  Third, it revokes any general or special power of appointment granted to the ex-spouse, who is deemed to have predeceased.If the gift to the spouse is of “residue” (meaning the assets left over after all debts are paid and specific gifts to other beneficiaries are distributed), then an intestacy (meaning the legal equivalent of having no Will at all) may result for those assets, causing a distribution that will likely not be what the deceased would have wanted.While the Succession Law Reform Act’s provisions may provide some comfort following a divorce, they are a poor substitute for proper planning following this major life event.