Testators in Saskatchewan will no longer have their wills revoked when they enter into a spousal relationship thanks to recent amendments to The Wills Act, 1996. But if their spousal status changed before the legislation took effect, their wills may now be invalid, according to a decision from Saskatchewan’s Court of Queen’s Bench.
Amendments to The Wills Act, 1996
Prior to March 16, 2020, The Wills Act, 1996, SS 1996, c W-14.1 (the “Act”) provided that a last will and testament would be automatically revoked if the testator entered into a new spousal relationship, unless the will’s terms explicitly overruled such position. On March 16, 2020, the Act was amended to no longer revoke a will when the testator marries or has cohabited with someone in a spousal relationship continuously for two years (the “2020 Amendment”).
The Saskatchewan Court of Queen’s Bench considered the 2020 Amendment in its decision in Vance (Re), 2021 SKQB 320 (“Vance”), a case that demonstrates the importance of keeping an up-to-date will. The relevant events and dates in Vance are as follows:
- In March 2004, the deceased made a last will and testament, leaving his entire estate to his aunt;
- In 2014, the deceased entered into a new spousal relationship;
- In January 2020, the deceased and his spouse separated; and
- In June 2021, the deceased died without having updated his will.
The Court had to determine whether the 2020 Amendment to the Act operated retroactively. If the 2020 Amendment was retroactive, the deceased’s 2014 will would remain valid. If the 2020 Amendment was not retroactive, the 2014 will would have been revoked when the deceased entered into a spousal relationship in 2014. In the latter scenario, the deceased would have died intestate and his estate would be distributed in accordance with The Intestate Succession Act, 2019, SS 2019, c I-13.2.
Presumption Against Retroactivity
The Court noted that before the Act was amended, wills were revoked when a testator entered a spousal relationship to avoid the potential issue of the spouse being inadvertently left out of a will. However, when debating the 2020 Amendment, the Saskatchewan Legislative Assembly noted that automatic revocation of wills did more harm than good because it resulted in the wishes of the testator not being recognized, which could negatively affect other beneficiaries.
In determining whether the 2020 Amendment operated retroactively, the Court noted that there is a presumption against the retroactive operation of legislation. This presumption can only be rebutted by clear expression in the statute that the legislation applies retroactively or by necessary implication. The presumption against retroactivity exists to ensure fairness and consistency.
In this case, there was no clear expression in the statute that the 2020 Amendment was intended to operate retroactively. Further, Hansard from the Legislative Assembly debates clearly revealed that the legislature did not intend to have the Amendment apply retroactively. The Court ultimately concluded that the 2020 Amendment did not operate retroactively. As a result, the deceased’s 2004 will was found to have been revoked and the deceased was declared to have died intestate.
Notwithstanding the recent amendments to The Wills Act, 1996, if an individual made a will and entered into a subsequent spousal relationship prior to March 16, 2020, their will may no longer be valid. If you made a will and had a subsequent change in marital status, you should consider seeking advice on whether your will remains valid. Our Wills, Trusts & Estates group can advise you on your estate plan to ensure that your wishes are carried out.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice.