It is always a prudent to review and update your will regularly, say every two or three years. However, there are certain life events which should trigger in a testator’s mind that this exercise should soon be completed. Marriage is one such an event as, with few exceptions, provincial statute provides that marriage has the effect of revoking a testator’s will made prior to the testator’s date of marriage. This is a provision of law designed to protect spouses and children of the marriage. However, if the will states that the testator made it in contemplation of his or her marriage to a named person, then the subsequent marriage does not revoke the will.
InMacLean Estate, 2009 BCSC 1159 (CanLII), The executor of the last will and testament of Gordon William MacLean applied to the Court for a determination of whether the will was revoked by virtue of the testator’s subsequent marriage to Ms. Christiansen.
The testator and Ms. Christiansen met and began dating in April 2003. They began cohabiting in August 2003. The testator executed a will and a power of attorney appointing Ms. Christiansen his attorney on June 22, 2007. The couple married on August 11, 2007. The testator suffered a heart attack while on his honeymoon in Italy. He and Ms. Christiansen returned to Canada where the testator died on November 16, 2007, never having regained consciousness.
The will executed June 22, 2007, provided that one-half of the estate would accrue to Ms. Christiansen by way of a spousal trust. The beneficiaries of that trust are the four children of the testator’s marriage to his former spouse. Therefore, the Court`s task was to consider whether this provision could be interpreted to be a declaration that the will was made in contemplation of the testator’s marriage to Ms. Christiansen. Ms. Christiansen and the deceased`s children had turned to the Court on this question in non-adversarial circumstances. All parties would benefit whether the will was followed or an intestacy was declared.
The Court concluded that the reference in the Will to “my spouse, Karen Christiansen” is not a declaration of intentionto marry Ms. Christiansen, as they were common law spouses when the will was executed. The Court further observed that by the time they were legally married, they were also spouses for purposes of family law legislation. Mr. Justice Pitfield made these firm, unwavering comments in his decision:
A common law relationship is not marriage. A will cannot survive the conversion of a common law relationship to one of lawful marriage absent the finding of a declaration within the will that it is made in anticipation of that marriage, and the conversion of that relationship to one of legal marriage. In this case, the only reference to the status of Ms. Christiansen, then and in the future, is the word “spouse” contained in clause 3.b., and that is not sufficient…If the testator had made his will when the parties were not legally married and the parties had remained in a common law relationship from and after June 22, 2007, the will would have been valid. What defeats the will is the conversion of a marriage-like relationship, which is accorded virtually all of the rights and obligations attached to a legal marriage, to one of legal marriage.
The Court therefore concluded that the Will was revoked by the marriage. It is a tough lesson demonstrating that a testator should be diligent in updating their will as soon as possible after a major life event or change. In this case, the addition of a simple phrase in the June 22, 2007 Will would have made all of the difference in the outcome.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
