A will made in contemplation of marriage

The Succession Law Reform Act (Ontario) provides:

 

16.A will is revoked by the marriage of the testator except where,

(a) there is a declaration in the will that it is made in contemplation of the marriage;

(b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or

(c) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate. R.S.O. 1990, c. S.26, s. 16.

The British Columbia legislation is identical in this regard.

What happens if a will is made in contemplation of marriage but no declaration forms part of the will – does the marriage revoke the will?

It would appear so unless there is some way the Court can finesse a “declaration”.  In the recent British Columbia case of MacLean Estate v. Christiansen, 2010 BCCA 374 (CanLII) the Court held the use of the word “spouse” for the person to be married was sufficient for declaration purposes.  Clearly the Courts will strain to keep a will valid.  The Court holds:

 

[30]           With respect, that position does not accord with established authority. Again, the law on this point was usefully summarized in Ratzlaff at paras. 35-36:

[35]      I adopt the position of Lord Cairns in Charter v. Charter, as did Idington J. in Marks v. Marks, that the court has a right to ascertain all the facts which were known to the testator at the time he made the will and thus to place itself in the testator’s position in order to ascertain the meaning and application of the language he uses. A probate judge is entitled to take into account the surrounding circumstances which existed at the time of the execution of the will in order to determine the proper construction of the will. The extrinsic evidence can include utterances and non-testamentary writings as well as direct evidence.

[36]      That position is consistent with the approach in Re Foss. The testator, Foss, made his will in 1956 some eight days before his marriage. He stated in his own handwriting on a printed will form “I give devise and bequeath all my personal belongings money, shares in companys, insurance policys and property to my wife (Mrs. P. Foss)”. The will was duly executed. It was common knowledge that Mr. Foss was to be married in a few days. He died in 1972 leaving a widow and three infant children. Helsham J. considered whether extrinsic evidence would be admissible in these terms:

Whilst it is correct to say that the fact that a marriage was contemplated must appear by some expression in the will itself, it is also correct to say that whether the will contains such an expression must depend upon the construction of the will. If the will clearly contains such an expression, then there is no problem. If it does not, but there are some words which may or may not amount to such expression, then the will must be construed so as to find its true meaning. In order to ascertain the meaning of the words used by a testator it is permissible to construe the document in the light of the surrounding circumstances. This is the law in relation to ambiguities of language used in a testamentary document, and applies no less to the aspect of whether a testator has expressed the fact that his marriage was contemplated as to any other. For limited purposes the Probate Court has always been a court of construction, one purpose being to ascertain whether a will should be admitted to Probate:  In the Estate of Fawcett (Dec’d.) (3). This is such a case.

He concluded:

The problem arises in relation to evidence. When it is necessary to decide whether a will has not been revoked by a subsequent marriage, because it is expressed to be made in contemplation of a marriage, is it permissible to admit evidence of the circumstances that existed at the time the will was made – to read what the testator said in his will bearing in mind the situation that pertained at the time, or is the court confined to the terms of the will itself in order to ascertain whether it is expressed to be made in contemplation of marriage?

There can be no dispute that evidence is admissible as to the marital state of the deceased and any interested party at the date the will was made, and of the subsequent marriage of the deceased. That brings up the matter for decision. But can the court consider any other facts, as for example, that the deceased was engaged to be married, whether or not he was living with a person whom he describes in his will as his wife and whom he subsequently married, what time elapsed between will and marriage, and so on?  On this matter of evidence views has differed.

After referring to Charter v. Charter, supra, he continued:

In my opinion where a question arises as to whether an expression used by a testator in a will is sufficient to prevent revocation, by subsequent marriage, of that will by reason of the operation of s. 15(2) of the Wills, Probate and Administration Act, then extrinsic evidence of surrounding circumstances, in addition to the fact and date of marriage, will be admissible in order to answer the question.

This approach is also consistent with what this Court stated in Haidl v. Sacher.

[Footnotes omitted.]

[31]           The court concluded, at para. 41:

[41]      Thus, evidence of the surrounding circumstances is admissible to construe the relevant clause in the will for the purpose of deciding whether it should be admitted to probate. The “surrounding circumstances” are admissible.

[32]           Similarly, in Layer v. Burns Philp Trustee Co. Ltd. and others (1986), 6 N.S.W.L.R. 60 (C.A.), Mahoney J.A. held at 65:

Where it is clear that a word or term used has, amongst its accepted or dictionary meanings, a number of different meanings, extrinsic evidence is admissible to assist the court in determining which of such meanings the word or term bears in the particular case.

[33]           The Shorter Oxford English Dictionary, 6th ed. (Toronto: Oxford University Press, 2007), notes the origin of the word “spouse” from the Latin sponsus bridegroom, sponsa bride, and defines “spouse” as a “married person; a person’s lawfully married husband or wife”.

[34]           Similarly, in Taylor v. Rossu, 1998 ABCA 193 (CanLII), 1998 ABCA 193, 161 D.L.R. (4th) 266 at para. 92, the court held that “The ordinary meaning of the word “spouse” is a person who is joined in lawful marriage to another person.”

[35]           On that basis, there is arguably no ambiguity and the term used in the will can be said to refer to Mr. MacLean’s wife whom he was yet to marry, Ms. Christiansen.