Marriage (or Cohabitation) No Longer Revokes a Will in Saskatchewan

Note: The following blog post discusses changes to the law in Saskatchewan as of March 16, 2020. Please read the below information carefully, especially with respect to the dates of application. For an official opinion on whether this law affects your specific legal situation, please consult the advice of one of our wills and estate lawyers.

For decades, it has been common legal knowledge in Saskatchewan that a Will made prior to marriage would be revoked once the person making the Will (i.e., the “testator”) was married (unless the Will was made in contemplation of marriage). This was also the case with common-law marriages—persons who have cohabited together continuously for two years are treated as spouses. Therefore, a Will made before that two-year point would be revoked on the second anniversary of the cohabitation.

However, this law is no longer the case in Saskatchewan. The Wills Act, 1996, was amended on March 16, 2020, thereby repealing the sections that stated marriage (or cohabitation) revokes a Will. Consequently, marriages (common-law or otherwise) after March 15, 2020, will not revoke Wills, regardless of whether the Will was made before or after the new rules came into effect. Please note that these new rules do not apply retroactively; in other words, where a person executed a Will and then subsequently married before March 16, 2020, that Will would have been revoked at the time of that marriage and is not revived by these new provisions.

These changes were implemented largely to address concerns with respect to “predatory marriages”. Such circumstances could occur, for example, where two individuals (who were previously married with children from their first marriages) decide to get married again. Under the old law, the testator’s Will would be revoked on the second marriage, and unless the testator signed a new Will before he or she died, the testator would be deemed to have died intestate (i.e., without a Will) and the estate would be distributed according to the relevant intestate succession legislation. For a discussion on the priority of distribution under The Intestate Succession Act, 2019 (“ISA”), please see our earlier blog post on the topic.

The concern with this situation is that the new spouse would be entitled to inherit under the deceased’s estate, but the children of the former marriage may not inherit anything from their deceased parent. Under the ISA, whether the children would be entitled to a portion of the estate would depend on the value of the estate at the date of death. This outcome would be the case even if the testator and the spouse were married for only a short period of time before the testator died.

Conversely, under the new law, the testator’s Will shall not be revoked on the second marriage. Rather, on the death of the testator, the estate would be distributed according to his or her Will (unless the testator revoked the Will in another manner). It is true that under this latter situation, the new spouse may not be entitled to any part of the testator’s estate under the Will, even if the testator intended for that to happen but did not get around to changing the Will before he or she died.

However, where a testator does not explicitly provide for a spouse under his or her Will, the spouse still has the ability to make an application to Court under The Family Property Act or The Dependants’ Relief Act, 1996 to be entitled to share in the estate. Therefore, under the new law, the testator’s intentions are preserved by not revoking the Will, yet a spouse still has recourse to be included in the distribution of the estate. On the other hand, under the old law, the deceased’s children may be disentitled to inherit from their parent’s estate simply because a new Will was not signed by their parent soon enough (in other words, they would have no recourse).

The new law does not prevent a testator from distributing property how he or she would like to under his or her Will. Rather, the new law puts the onus on the testator to modify the Will after he or she gets married to provide for the new spouse (if that is what the testator’s intentions are). If the testator does not change the Will to provide for the new spouse, the spouse can still make an application to Court to share in the estate, and the Court will determine, based on the unique circumstances, whether the spouse should be entitled to a portion of the estate.

This change in the law could have profound implications on your wishes for your property after your death, especially with the increased number of second marriages. For an opinion on the application of this new law to your estate plan, please do not hesitate to reach out to one of our wills and estate lawyers for assistance.

About the Authors:

Haley is an associate with the Regina office.

Ryan is an associate in the Regina office, where he practices residential and commercial real estate transactions, and wills and estate planning.

About McKercher LLP:

McKercher LLP is one of Saskatchewan’s oldest and largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made our firm rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2017). Integrity, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.