How Separation and Divorce Affects your Will

Tuesday, April 25th, 2017
Posted in: Wills Separation Family Law by Ashley Donald, Associate

Ashley Donald – April 2017

You made a Will during happier times leaving everything you own to your spouse, including your beloved vinyl record collection and your interest in your family’s cottage.

Now you have separated or divorced – what does that mean for that Will you signed?

Separation

If you have separated from your spouse and are going through the process of divorce, there is no effect on your Will. If you pass away during this time without making changes to your Will, all of your beloved ABBA records will end up in your ex’s hands and home. Morrell Estate v. Robinson, 2008 NSSC 295, tells us that even with an executed Separation Agreement, separation does not impact an executed Will unless the Separation Agreement specifically addresses the Will. The common release clause is not enough to revoke the Will.

If your Will no longer represents your desires, you should bring a copy in with you for your Initial Consult with your MDW lawyer. Your lawyer can work with you to create a Will that properly represents your wishes.

Divorce

While separation does not affect your Will, a Divorce Order does. The Nova Scotia Will’s Act states:

Effect of divorce or declaration of nullity

19A        Notwithstanding Sections 18 and 19, except where a contrary intention appears by the will or a separation agreement or marriage contract, where, after the testator makes a will, the testator’s marriage is terminated by a judgment absolute of divorce or is declared a nullity,

(a)          a devise or bequest of a beneficial interest in property to the testator’s former spouse;

(b)         an appointment of the testator’s former spouse as executor or trustee; and

(c)          the conferring of a general or special power of appointment on the testator’s former spouse,

are revoked and the will shall be construed as if the former spouse had predeceased the testator.

This means that any Will you created prior to your Divorce will be affected by a Divorce Order. If you get divorced, your Will does not become invalid, however, the sections in your Will that give property to your ex, names your ex as an executor or trustee, or gives your ex any other special job will be considered revoked and not in effect.

Now, what does that even mean?

Scenario 1: You actually want your ex-spouse to inherit from you to help support your children, you want your spouse to act as a trustee for your children or you still actually like your ex-spouse and know he or she will take good care of your beloved Journey CDs.

If your divorce has been finalized, all the provisions in your Will that give property to your ex-spouse or gives him or her a special job will be revoked. This means your ex won’t receive the gifts you intend for them, and will not be able to act as your executor or trustee. An alternate would need to be appointed by the court.

If you intend for these provisions to remain valid, your MDW lawyer can help you address these wishes in your Separation Agreement or Corollary Relief Order with very specific wording.

Scenario 2: You would turn over in your grave if your ex-spouse was gifted your first-prize heirloom tomato plants under your Will, as was the plan during your marriage.

Lucky for you, this gift would be revoked if your Divorce has been finalized. If this occurs, the Will is to be read as if your ex-spouse predeceased you. This was confirmed and analyzed in Hayward v. Hayward, 2011 NSCA 118. Your beloved heirloom tomato plants would fall into the residue of your estate.

If your divorce has not been finalized with a Divorce Order, your heirloom tomatoes will go to your ex. We can help you create a new Will, or specifically address your current will in a Separation Agreement to ensure your property ends up in the hands of the right person.

So, what do I do?

To ensure your wishes are clear and enforceable under your Will amidst separation or divorce, speak with your MDW lawyer. Let your lawyer know you have a Will, and let them know whether that Will still represents your wishes. We can help you work through not only your separation and divorce, but the impact of those stages on your estate planning.

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