I’m asked this question quite frequently at my law office in the Kanata-Stittsville area of Ottawa. The answer is yes, under Ontario law, but with one qualifier. If the testator (the person who signed the Will) is legally divorced from his or her spouse when the testator passes away, any Will signed before the divorce is still valid but would be read as if the testator’s spouse had died first. All other provisions of the Will would still be effective. However, if the testator’s circumstances have changed since the Will was signed, the Will’s remaining provisions may no longer reflect the testator’s goals.
For example, the testator may have entered into a new relationship. If the new relationship is a common law relationship and the testator does not update his or her Will, the new common law spouse may not get what the testator expects after his or her death. Why? Because in Ontario, a common law spouse does not enjoy the same property rights as a married spouse. If a deceased partner’s Will does not provide for the common law spouse, it may be necessary to make an application to court to establish a claim against the estate.
The testator may also have had children after signing his or her Will. If a child of the testator is not mentioned (whether by name or by class, e.g., “issue”) in the Will, the child does not inherit. However, a child may have a claim against the estate for support. Such claims typically require a costly court application which will be paid for from the estate further reducing what is available for beneficiaries.
As well as regular reviews of one’s estate planning, it is essential to promptly review one’s estate planning following a major life event. Following an event such as separation, divorce, or marriage, estate planning goals change and new documents are probably needed to reflect current wishes as well as to ensure legal obligations to provide for a spouse and children are met. Failing to update documents can be far more costly than the cost of having a new Will drafted and signed.
Have you reviewed your Will and Powers of Attorney lately? Has there been a significant change in your circumstances since your documents were signed? If you answered yes to either of these questions, email [email protected] or call 613.836.9915 to make an appointment to meet with me at my Ottawa law office. We will review your unique situation and estate planning goals to make sure your Will and Powers of Attorney take care of you and your loved ones in the best way possible.
Reproduction of this blog is permitted if the author is credited. If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.
Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.
