Previous pitfalls for Ontario wills when marrying – or separating

For decades, the rule for Ontario wills has been that a marriage will invalidate any wills that the couple had made before marrying, unless those wills made special reference to their upcoming marriage when they made them.  Conversely, however, when marriages had broken down and the spouses were no longer living with one another, there was no presumption that this would affect the interpretation of their wills. 

No more nasty surprises after marriage in Ontario

Now, Ontario’s Succession Law Reform Act will be amended to change both of these standards.  For couples marrying on January 1, 2022 onwards, their marriages will no longer invalidate their wills.  This rule, which was widely enforced, but not widely known, has been the cause of surprise for many couples in the past, and can have disastrous results for estate planning.  Eliminating this rule will provide couples looking to marry one thing less to worry about, when most are concentrating on issues other than their wills.

Changes for gifts after long-term separation

The other major amendment deals with the breakdown of marriages, and holds that the gifts left in a will from one partner to the other will no longer be valid, once the spouses have been living separated from one another for a period of three years or longer, among other situations. A similar rule already exists for divorced couples, but not for spouses who are no longer a couple, but also haven’t formally divorced one another. The new amendments to the Succession Law Reform Act will ensure that long-term separated couples, and couples who are dividing their joint property between them, can no longer receive gifts left to them their former partners and vice versa.

This change makes a lot of sense – it’s unlikely that many couples who have been separated for long periods of time still want to leave gifts to their former partners.  However, as many wills for married couples are drafted so that spouses receive the lion’s share of an estate, and given that wills are normally updated only infrequently, exactly these sorts of gifts may have been inadvertently left in the past. The changes to the Act will help to keep this from happening.

What happens to Ontario property in German estates?

This new change may become very interesting in international estates. In Germany, a marital contract between partners is a common way to outline testamentary intentions, instead of a will. But if the couple also owns property in Ontario (say, a recreational property or cabin) before separating, will that marital contract no longer apply to that asset, if one of the partners subsequently passes away? Based on the language of the new amendments to the Succession Law Reform Act, it seems likely that the surviving partner would no longer be able to claim that windfall in Ontario, even if they were entitled to estate assets in Germany.

As with all things that relate to estates, the changes to the Act will only really be felt in the future.  We recommend a regular review of wills by counsel to ensure that wishes are fully respected in the future.

International investors with Canadian property are advised to plan estates well in advance and regularly assess whether past decisions continue to apply. A lawyer specialized in Canadian wills and estate planning can help and advise comprehensively.

At Jacob Associates, our signature characteristic is to build a strong bridge between Canada and Germany and being active on both sides of the Atlantic. As the leading law firm in Germany on Canadian law, we enforce the interests of German clients with legal matters in Canada. At the same time, we solve legal issues for Canadian clients in Germany.

Please feel free to contact us if you wish advise in Germany on estate planning concerning investment in Canada.