Those that already have wills or are looking to obtain one should understand the impact of their family law situation on the validity of the will.
Section 61 of the Children’s Law Reform Act allows for testamentary custody, meaning that a person entitled to custody may appoint by will one or more persons to have custody of the children and to be a guardian of property of the children. This appointment expires automatically within ninety days or, if the appointee applies for custody or guardianship of the property of the children within those ninety days, then the appointment expires when the application is disposed of.
The will is revoked by marriage of the testator except if: i) there is a declaration in the will that it is made in contemplation of the marriage. In doing so, the will must very clearly state the marriage and name of the future betrothed; ii) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; and iii) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate.
Although a will is not automatically revoked by a judgment absolute of divorce, any provisions in the will regarding the former spouse will be nullified, including a devise of bequest of a beneficial interest in property to the former spouse, an appointment of the former spouse as executor or trustee, and the conferring of a general or special power of appointment on the former spouse.
4. Election of surviving spouse
Spouses should also be aware that the surviving spouse has the right to choose between electing to go under the will, intestacy, or section 6 of the Family Law Act (deeming the spouses to be separated), and/or the appropriate combination thereof if the will so provides. This election must be made within six months, otherwise the surviving spouse is deemed to have elected to take under the will or the Succession Law Reform Act, as the case may be, unless the court orders otherwise. The provisions contained in section 6 of the Family Law Act detail the surviving spouse’s different choices with regard to election:
6 (1) When a spouse dies leaving a will, the surviving spouse shall elect to take under the will or to receive the entitlement under section 5. R.S.O. 1990, c. F.3, s. 6 (1).
(2) When a spouse dies intestate, the surviving spouse shall elect to receive the entitlement under Part II of the Succession Law Reform Act or to receive the entitlement under section 5. R.S.O. 1990, c. F.3, s. 6 (2).
Spouse’s partial intestacy
(3) When a spouse dies testate as to some property and intestate as to other property, the surviving spouse shall elect to take under the will and to receive the entitlement under Part II of the Succession Law Reform Act, or to receive the entitlement under section 5. R.S.O. 1990, c. F.3, s. 6 (3).
Property outside estate
(4) A surviving spouse who elects to take under the will or to receive the entitlement under Part II of the Succession Law Reform Act, or both in the case of a partial intestacy, shall also receive the other property to which he or she is entitled because of the first spouse’s death. R.S.O. 1990, c. F.3, s. 6 (4).
Gifts by will
(5) The surviving spouse shall receive the gifts made to him or her in the deceased spouse’s will in addition to the entitlement under section 5 if the will expressly provides for that result. R.S.O. 1990, c. F.3, s. 6 (5).