Married or Divorced? It’s Time to Update Your Will

Updating your will is very important after major life events like marriage or divorce. These changes usually impact your estate planning goals, and failing to update your will can lead to unintended consequences. When you get married, your priorities and beneficiaries often change. If you fail to revise your will, your assets might be distributed in ways that no longer reflect your wishes. This can create stress and conflict for your loved ones. By proactively updating your will, you can ensure that your estate plan aligns with your current priorities.

Does Marriage Impact the Validity of Your Will?

In the past, if a testator became married after executing their will, the marriage would automatically revoke the will. Under section 55 the Wills, Estates and Succession Act, a will is only revoked in certain circumstances. It must be clear that the testator specifically intended for the will to be revoked. This means that after your marriage, your estate plans will remain unchanged unless you make an updated will.

While leaving your will unchanged may be appropriate for some, it’s common for estate planning goals to change as your family grows. For instance, you may wish to include your spouse as a beneficiary or appoint them as an executor or trustee. By updating your will, you ensure that your estate plan aligns with your wishes and provides for your loved ones.

If you were married before WESA’s introduction in March 2014 and haven’t executed a new will, your will is still revoked under the old legislation.

Separation and Divorce

After a divorce or separation, gifts to an ex-partner in a will are automatically revoked. The remaining arrangements made in the will remain unchanged. Though this sounds convenient for those with simple estates, it remains important to update your will after a separation. Neglecting to update a will after a divorce can lead to several problems. For example, gifts may fall into intestacy if a will-writer doesn’t include a residuary clause. This may result in specific gifts going to beneficiaries who you may not have intended. For more on the rules of intestacy, see our blog post here.

A divorce from a legal marriage is not the only consideration which may impact your estate plans. A breakup from a long-term separation may have a significant impact on your estate planning. If the relationship was considered “marriage like” under WESA, separating from your partner may have a similar effect to divorce. Couples are considered spouses if they have lived together in a marriage-like relationship for two years or more.

Updating Your Will to Reflect a Relationship Change

While it isn’t often at the top of people’s minds when entering a new relationship or separating from a long-term partner, estate planning is an important aspect of anyone’s plans for the future which must be given adequate attention.

After a Marriage

Depending on the nature of your relationship, the structure of your family and existing estate plan, the changes you might make to your estate plan after a marriage may vary, In general, the most common and important changes that people should consider after a marriage include: 

• Including your spouse as a beneficiary of your estate;
• Updating the guardianship of your children, if applicable; and
• Making revisions to your executor, trustee and power of attorney appointments.

Updating your will after marriage is crucial to ensure your wishes are respected, especially regarding appointments for a power of attorney and personal health representative. By updating your will, you can designate a trusted individual, usually your new partner, to make decisions on your behalf if you lose the capacity to do so.

Mutual and Mirror Wills For Married Couples

Spouses usually share a majority of their estate’s assets, and want to work together in their estate planning. Couples can create a mutual will or mirror wills to handle their estate in a way they both agree upon. If a couple decides to create a will jointly through either of these methods, it’s important to consider which one best suits your life, family, and estate planning goals. 

A mutual will is a single will, created between two people. Will writers should be aware that you cannot change mutual wills after one of the spouses passes away. In some cases, one spouse goes on to remarry after the death of their spouse. If there is a mutual will in place, the spouse cannot go against the deceased’s wishes and change it. At first glance, this appears to be beneficial to both spouses writing the mutual will. However, it can create complications if the surviving spouse has more children after the death of their first spouse. Giving the new children an inheritance from the estate can be extremely difficult because you cannot change the mutual will.

Mirror wills are two identical wills written by a couple. This differs from a mutual will because a mirror will doesn’t prevent someone from changing their will after the death of their spouse. With a mirror will, the surviving spouse could modify their will. They could disinherit or inherit people who the predeceased spouse would not have agreed with. The surviving spouse is in full control of the entirety of the estate. Spouses with mirror wills can’t be fully certain that their partner will honour their final wishes.

After a Divorce or Separation

Under section 16 of WESA, a gift, appointment or power given in a will to a spouse is automatically revoked upon divorce unless the will expresses a contrary intention. This means that, unless you explicitly state otherwise, any assets left to an ex-spouse in your will are to be disposed of according to the laws of intestacy or a residue clause as if the partner predeceased you.

Although gifts in a will to your former partner are automatically revoked, it’s important to ensure that your precise testamentary wishes are reflected in your estate plan. For this reason, we recommend that people revisit their entire estate plan and reassess their estate planning goals after a separation. Similarly to those revisiting their estate plan after a marriage, those making changes after a separation should consider making revisions to the following at a minimum:

• Beneficiaries of their estate;
• Guardianship and custodial arrangements for their children, if applicable; and 
• Appointments of executors, trustees, powers of attorney and personal representatives.

If you had previously appointed a partner as your power of attorney, for example, and then divorce without updating your will before you die, you will not have a power of attorney prepared should you unexpectedly lose capacity.

How to Legally Change a Will in British Columbia

It is not complicated to execute a new will in British Columbia. Under WESA, when a testator creates a new will, any previous versions of their will are automatically revoked. However, it may be a good idea to inform your loved ones that you have created a new will to avoid confusion. If you are only making very minor revisions to your will, you may opt to use a codicil. This is a document that is attached to your will to make simple amendments to provisions within the existing document. It is usually advisable to create an entirely new will after a marriage due to the nature of the change in your succession plan which often results from marriage. A codicil is not an appropriate tool to amend an existing will if, for example, a couple chooses to have mutual or mirror wills or make arrangements for jointly owned property.

Reminders for Will Writers

Updating your will after marriage or divorce is important, and shouldn’t be overlooked despite the automatic protections under WESA. By making regular updates to your estate plan, you can ensure your wishes are clear and enforceable. This helps protect your assets and provides clarity for your loved ones. Whether it’s appointing a new power of attorney, updating beneficiaries, or making other changes, taking these steps now can prevent future disputes and simplify the probate and asset distribution process for your loved ones It can also ensure that, should you lose capacity unexpectedly, a trusted power of attorney or health representative is able to step in right away without waiting for a court appointment.

If you’re ready to make an update to your will after a major change in your life, contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.