Tuesday, April 18, 2006

Effect of Marriage on a Will

[Since I wrote this post, British Columbia law has changed. Under the Wills, Estates and Succession Act, which came into effect on March 31, 2014, a marriage on or after that date does not revoke a will. The old law described in this post will apply if the marriage occurred before March 31, 2014.]

Under British Columbia law, if you make a will, and then get married, your marriage revokes your will. There is an exception if you include in your will a declaration that the will is made in contemplation of your marriage. This is set out in s. 15 of the Wills Act, RSBC 1996, c. 489.

This is one respect in which marriage does have different legal consequences than living in a marriage-like relationship. If you live in a marriage-like relationship, this does not have the effect of revoking your will (although your common law spouse may apply to vary your will).

Supposing two people who are living together in a marriage-like relationship make wills in which they each leave everything to each other. At the time they make their wills, they are not contemplating marriage, and their wills do not contain a declaration that they are made in contemplation of marriage. The couple later marries. Because they have already left everything to each other in their wills, they do not make new wills. The husband dies.

What is the result?

The marriage revoked the husband's will. He dies intestate (without a will.) If he did not have any children, or other issue, his wife will receive his estate anyway under s. 83 of the Estate Administration Act, RSBC 1996, c. 122. If he had children or grandchildren, his wife will have to share the estate according to the rules for intestate estates under s. 85 of the Estate Administration Act.

Should section 15 of the Wills Act be amended? Abolished? Should a spouse be given the option of allowing the other spouse's will to remain in effect if it was made before their marriage?

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