Wills and Separation Agreements

As has been previously written about in our blog, separation does not invalidate the Will of a husband or wife.  It is therefore important that Wills be addressed as part of the life-restructuring that is undertaken when a marriage breaks apart. One recent case highlights what the consequences can be if this issue is not carefully addressed. In the case Makarchuck v. Markarchuk, the Superior Court of Justice was called upon to determine whether the deceased husband’s Will, which was signed 5 months before the couple separated, was invalidated by the terms of the Separation Agreement the couple signed. The deceased’s Will named the wife as Estate trustee and as the sole beneficiary.  The Separation Agreement, on the other hand, included the following provision: Except as provided in this agreement, and subject to any additional gifts from one of the parties to the other in any will validly made after the date of this agreement, the husband and wife each release all rights which he or she has or may acquire under the laws of any jurisdiction in the estate of the other and in particular:…. The Separation Agreement made no specific mention of Wills executed prior to the date of the Agreement. The deceased’s son argued that the language of the Separation Agreement should be interpreted as a waiver of rights under prior Wills, in light of its reference to subsequent Wills.  The couple, he argued, clearly intended to release claims to one another’s estates and the Will should therefore not be given effect. The Court disagreed, finding that the Will remained valid despite the Separation Agreement.  The Court held: The language [in the Separation Agreement] is not broad enough to include rights acquired under the will. Mr. Makarchuk had a number of means available to him to effectively revoke the gift he had made to Mrs. Makarchuk prior to their separation. The language of the release in the separation agreement does not specifically address the will made only five months prior. The language of the release speaks to ‘rights acquired under law’. This is not a reference to rights acquired by the will. I find that the release does not trump the will.