by Jason Murphy | Sep 17, 2013

Under Ontario law, your will is revoked when you get married, unless you make a specific declaration in the will that it is “made in contemplation of the marriage”. Failing to review your will before marriage can therefore have disastrous consequences for your estate planning, as shown in the recent case of Caron v. Rowe.

Paul Rowe made a will in May of 2009. He left his entire estate to his parents. The will made no declaration of being made in contemplation of marriage.

Paul married Andrea Caron four months after signing his will. Paul and Andrea entered into a pre-marital contract 2 days before the wedding. The contract stated that Paul and Andrea’s property would remain separate in the event of separation or divorce. In other words, they would each take out of the marriage what they brought in.

The contract also provided that Andrea waived any claim in Paul’s home, which was registered in his name alone. The contract stated that the home would “forever remain in Paul’s personal estate”.

Paul died two years after marrying Andrea, while the couple was still married. Andrea sought a court declaration that Paul had died intestate (without a will), that she was Paul’s sole beneficiary under the Succession Law Reform Act and that she be appointed trustee of Paul’s estate.

Andrea argued that she was entitled to all of Paul’s property including his house, because their marriage contract only provided for the couple’s property to remain separate in the event of separation and divorce – it did not deal with what happened to property in the event of death. Andrea argued that, since the house formed part of Paul’s estate and she was the sole beneficiary of that estate, the house was hers.

Not surprisingly, Paul’s surviving parent and his brothers opposed Andrea’s position on the house. They argued that Andrea had waived any claim to it via the marriage contract.

The court found in Andrea’s favour. There was no doubt that Paul had died intestate and that Andrea was therefore his sole beneficiary under the Succession Law Reform Act . While couples can opt out of their rights and obligations to each other under that Act by way of a marriage contract, the contractual terms must be very specific. Paul and Andrea’s marriage contract did not specifically waive their rights under the Act.

It was obvious that Paul and Andrea had considered the possibility of Paul’s death when negotiating their marriage contract because the contract dealt with child support obligations in that scenario. Because the property section of the marriage contract did not deal with death as clearly, the court was unwilling to say that Andrea had intended to waive her rights under the Succession Law Reform Act .

As a result, all of the property went to Andrea, including the house.

The lesson from this case is clear: marriage and estate planning go hand in hand. If you are thinking of tying the knot, speak with your lawyer to understand how your new relationship may affect the treatment of your property after death.

Jason Murphy practices family, civil and estates litigation at the law firm of Christie/Cummings in Collingwood. Please note that this article is only an overview and is not legal advice. Consult a lawyer before taking any action.