Under the new Wills, Estates and Succession Act, if you make a will before you get married, divorced or separated, your will continues to be valid even after one of these events occur. However, the impact on your will as a result of one of these events occurring after you have executed a will tend to vary depending on which of the three events occur.
Is the will I made before I got married still valid?
If you executed a will before you were married but didn’t leave anything for your current spouse, or perhaps did, but didn’t leave them much, although your will continues to be valid, it may be subject to a wills variation claim. Under the laws of British Columbia, you are required to make adequate provisions for your spouse and children in your will. Failure to do so, can result in a wills variation claim, which if successful will alter the distribution of your assets after death.
While it is possible to disinherit your spouse or children in special circumstances, your reasons for doing so should be carefully documented, as they will be subject to scrutiny if your spouse or child brings a wills variation claim against your estate. There are ways to limit the value of your assets that can be subjected to a wills variation claim; however, before doing so you should consult a professional.
Is my will valid after divorce? What about after separation?
Unless a contrary intention appears in your will, it continues to be valid after divorce and/or separation. However, if you left your spouse any gifts in your will or appointed your spouse as one of your trustees or executors, their appointment and any gifts you left them will no longer be valid. As such, if you appointed your spouse as your primary trustee and/or executor, and then separated from or divorced him or her, your will continues to be valid but your spouse will no longer be your trustee and/or executor. Instead, if you appointed an alternative trustee and executor, he or she will become the primary trustee and/or executor of your will. If this is not your intention, and you would like your ex-spouse to continue to act as your executor and/or trustee, you must specifically state this in your will.
Similarly, if your will leaves one or more gifts, or a portion of the residue to your spouse, whom you subsequently separate from or divorce, the gift will pass to the alternately named beneficiary, or if no alternate is named, the gift(s) will be added to the residue of your estate and will be distributed accordingly to any residual beneficiaries. Again, if this is not your intention, and you still wish to leave a gift, or a portion of the residue of your estate to your ex-spouse, you should explicitly state this in your will.
For more information regarding the effect of marriage, divorce and/or separation on your will, which are specific to your individual circumstances, please feel free to call for a free initial 20 minute telephone consult with Laila Ali.