Written by Colin A. Steffler
In happier times, you made a will leaving everything to your spouse and naming him/her as your estate trustee (executor). Now you are separating. Presumably, anyone reading your will today would realize that it is probably no longer your intention to leave your estate to your (now former) spouse, so your will would be interpreted differently, right?
Unfortunately, that is not the case. Even if someone might be able to guess that your wishes have changed, that is not enough to change your will. In fact, section 17(1) of the Succession Law Reform Act explicitly states that a will is not revoked by a presumed intention to revoke it based on a change in circumstances, subject to some limited exceptions.
Separation has no impact on your will. If your will is valid, it will be presumed to reflect your current intention. That means that whatever appointments or gifts you have made will take effect on your death, without any consideration being given to how your separation may have changed your intentions.
If you die intestate – that is, without a valid will – your (ex-) spouse is entitled to a “preferential share” of your estate (up to $200,000.00) and an additional share of whatever is left, the size of which depends on how many children (or other descendants) you have.
Similarly, if you named your spouse as your attorney under a power of attorney for property or personal care, your separation has no impact on that appointment.
Now let’s say you and your spouse have signed a Separation Agreement in which each of you releases any right or interest you may have in the other’s estate. But – you haven’t changed your old will, which left everything to your spouse. Since your will predates the Separation Agreement, the latter is obviously a more accurate statement of your current wishes, so it should prevail over the terms of the will, right? Not necessarily.
Again, if your will is valid on its face, it is presumed to reflect your current wishes. The fact that a subsequent Separation Agreement seems to contradict your will may not be enough rebut this presumption, unless the Agreement contains clear and cogent wording to this effect.
Unlike separation, divorce does impact your will. After you are divorced, that old will leaving everything to your former spouse will be interpreted as if he/she had predeceased you, unless your will contains wording to the contrary. This means that any gifts to your ex-spouse and any appointment of your former spouse as your executor are revoked and will pass to the substitute beneficiaries/trustees.
If you haven’t named substitute beneficiaries, an intestacy or partial intestacy may result, and your estate may be distributed in a manner that is different from what you would have wished. Similarly, if you did not name a substitute estate trustee, or the person named is unwilling or unable to act, court proceedings may be required to have a different estate trustee appointed.
As for your powers of attorney for property and/or personal care, these are not impacted by divorce. If you appointed your former spouse as your attorney, that appointment remains the same unless you change it. The same goes for most beneficiary designations under life insurance policies, RRSPs, pensions, etc. – if you named your spouse as the beneficiary, it is up to you to change that designation; there is no automatic change resulting from either separation or divorce.
Ultimately, all of this boils down to a fairly simple point: If you are separating or getting divorced, you should review your will, powers of attorney, and any beneficiary designations you have made to determine whether these documents reflect your current wishes. If they do not, it is time to consider having them updated.