Estate Planning

Wills Made in Contemplation of Marriage

By Hull & Hull LLP

In a Probater article, my colleague, David M. Smith, mused on 'in contemplation of marriage' clauses in Wills legislation, which preserve Wills in the face of marriages. As noted by David, to avoid revocation by an impending marriage, a testator usually must include a clear and unambiguous declaration in his/her Will that it is made in contemplation of marriage. The language used must clearly evidence the testator's contemplation of marriage to a particular person (who is undoubtedly a beneficiary under the Will).

A recent decision out of British Columbia dealt with whether or not a marriage had the effect of revoking a Will where the existence or intent of a 'contemplation declaration' was ambiguous. In MacLean Estate v. Christiansen, the testator and Ms. Christiansen began dating in April 2003, and living together in August 2003. In 2005, the testator finally divorced his former spouse, with whom he had had four children. In 2006, Ms. Christiansen and the testator announced their engagement to family. The testator then executed a Will and power of attorney in favour of Ms. Christiansen in June 2007. In August 2007, the couple married but the testator died shortly thereafter. 

The June 2007 Will provided that for Ms. Christiansen by way of a spousal trust. One of the clauses in the Will stated, in part: 'to deliver to my spouse, Karen' (i.e. Ms. Christiansen). The issue became whether this clause could be construed to be a declaration that the Will was made in contemplation of the testator's marriage to Ms. Christiansen. 

The court ultimately held that the June 2007 Will had been revoked by the subsequent marriage. The court held that the reference to 'my spouse' was not a declaration that the Will was made in contemplation of the marriage to Ms. Christiansen. It was a reference to their common-law relationship; Ms. Christiansen was the testator's common-law spouse at the time of execution of the Will. As held by the Court, 'the Will could not survive the conversion of a marriage-like relationship, which is accorded all of the rights and obligations attached to a legal marriage, to one of legal marriage'.

Interestingly, it was the named executor who applied for the determination as to whether the June 2007 Will was revoked by the subsequent marriage. The children of the first marriage on the one hand, and Ms. Christiansen on the other hand, each advised the Court that they did not wish to assert that the Will be submitted for probate. The situation was likely non-adversarial due to the fact that whether the estate devolved by Will or an intestacy, all of the children and Ms. Christiansen would benefit (to varying degrees). It should be noted that the new Wills, Estates and Succession Act will abolish the 'contemplation of marriage' provision in British Columbia.

Thanks for reading,

Bianca La Neve

Bianca V. La Neve - Click here for more information on Bianca La Neve.

Full post as published by Toronto Estate Law Blog on November 24, 2009 (boomark / email).