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Is a will still valid if the parties have separated? What about if they have divorced?

If parties are separated, the law protects spousal rights under both the realm of wills and intestacy. A separated spouse mentioned in a will is entitled to the gifts given by the testator. Likewise, a separated spouse still has status under the law of intestacy.

If a will is made benefitting the testator’s spouse, and the parties are subsequently divorced, there is conflicting law.

Common Law

Under the common law, a will is not revoked by divorce, only a new marriage. Common law holds that a will created during the marriage is not revoked and the gift will stand, unless circumstances show that a future spouse was intended. For example, note the distinction:

“To my wife, I leave 126 Prince St.”

“To my current wife, I leave 126 Prince St.”

Under common law, in the first example, the ex-wife would still receive 126 Prince St.

Statute

However, since it can be assumed that a testator does not normally wish to benefit their former spouse, Section 17(2) of the SLRA has reversed common law:

Exception on termination of marriage

(2)Except when a contrary intention appears by the will, where, after the testator makes a will, his or her marriage is terminated by a judgment absolute of divorce or is declared a nullity,

(a) a devise or bequest of a beneficial interest in property to his or her former spouse; (b) an appointment of his or her former spouse as executor or trustee; and (c) the conferring of a general or special power of appointment on his or her former spouse, are revoked and the will shall be construed as if the former spouse had predeceased the testator. R.S.O. 1990, c. S.26, s. 17.

Case law has clarified that this intention must be clear on its face.

Previous wills are revoked upon the marriage of the testator under Section 16(a) and (b) of the SLRA, unless the testator expressly identifies that the will was made in contemplation of the marriage.