Historically, the law provided that marriage revoked a will not made in contemplation of marriage. This rule was removed from Saskatchewan legislation in 2020. This article reminds counsel that some clients may still be impacted by the principle of revocation by marriage, if their will was revoked by marriage before the 2020 amendment. The practical solution for such clients is to encourage them to take timely steps to update their wills.
The importance of this lesson (and its harsh consequence) is underscored by the Saskatchewan decision in Vance (Re), 2021 SKQB 320 (“Vance”).
Background
Vance concerned the issue of revocation of a will, which was not made in contemplation of marriage. The application was brought by De-Anna Lynn Bailey, in relation to the estate of her nephew, James Benjamin Gilbert Vance (“Deceased”).
To understand the outcome in Vance, we need to understand the effect of s. 17 of The Wills Act, 1996, SS 1996, c W-14.1 (“Act”).
S. 17 was only recently repealed in March 2020. Before then, the provision provided as follows:
17(1) A will is revoked when:
- the testator marries; or
- the testator has cohabited in a spousal relationship continuously for two years.
Revocation by marriage was a historical principle of law. Entering into a spousal relationship, either by cohabiting or formal act of marriage, was a significant step that changed the legal landscape of the person involved. As a result, the legislature concluded that any prior testamentary disposition should not be considered valid in the face of the new spousal reality.
In Vance, the specific facts in play meant that the Deceased’s prior will was revoked by his common law relationship. The chronology ran as follows:
- The Deceased made his will in October 2004, with De-Anna Lynn Bailey named as the beneficiary of his estate;
- In 2012, the Deceased began cohabiting in a spousal relationship with Christina Laturnas;
- In 2014 (the second anniversary date of the commencement of the Deceased's cohabitation with Ms. Laturnas), the 2004 Will was deemed revoked by virtue of s. 17(1)(b) of the Act (as it then read);
- In January 2020, the Deceased and Ms. Laturnas separated and were no longer living together;
- On March 16, 2020, ss. 16(a) and 17 of the Act were repealed. However, the legislature did not specify that the repeal applied to wills already revoked by marriages or spousal relationships; and
- On June 6, 2021, the Deceased died.
Thus, the issue in Vance was primarily whether the amendment to s. 17 was retroactive, and whether the amendment could “revive” the 2004 Will.
Decision in Vance:
The court held “the issue here is whether the amendments to the Act were retroactive, with the result that the 2004 will was never revoked at all or was revived” (para 7).
Vance held that the repeal to s. 17 was not retroactive. The Court relied on the principle that when a legislature changes the law, that change will “only apply retroactively where the legislature has clearly indicated that it has weighed the benefits of retroactivity with its potential unfairness or disruption” (para 12).
The Court in Vance was being asked to turn back time and revive the Deceased’s 2004 will long after it had been deemed revoked. As the amendment to s. 17 was not retroactive, the Court did not have the power to do this. Simply put, the legislature did not explicitly indicate that the repeal to s. 17 was to operate retroactively.
Lessons:
Most non-lawyers are not aware of the issue of revocation by marriage, or the 2020 amendment which removed it. There was no evidence referenced in Vance showing the Deceased knew that his spousal relationship in 2014 had revoked his 2004 will. As a result, the Deceased likely wished De-Anna Lynn Bailey to receive his property. Because of the technicality of revocation by marriage this did not occur, and the Deceased’s intentions were not given effect.
Vance shows that the amendment to s. 17 is not retroactive. While the result in Vance was legally correct, it was a harsh blow to De-Anna Lynn Bailey, who understandably felt that the Deceased truly wished her to inherit his estate.
If the Deceased in Vance had updated his will after his relationship ended, then his actual testamentary intentions would have been honoured. Vance reminds us to ensure our clients understand the importance of having an updated will.
James D. Steele (he/him) is a Partner at Robertson Stromberg LLP in Saskatoon and practises in estate litigation.