Do Religious Marriages Revoke a Will?

Charles B. Wagner

In Canada, Ontario legislation provides that, with certain exceptions, marriages revoke a will. The purpose of this article is to examine a situation where couples only enter into a religious marriage. If this religious marriage revokes the will then an intestacy results and the surviving spouse might receive a windfall inheritance which was unintended by the couple.

After Harry died, his second wife's lawyers argued that their marriage revoked Harry's will, she inherited his estate and his children were disinherited. But that's the middle of the story - let's start at the beginning

In Canada, Ontario's Succession Law Reform Act provides that a will is revoked by the marriage of the testator. There are exceptions to this rule, but they are not relevant to the issues addressed in this article. This paper addresses the unintentional potential disinheritance of children because of a ritual marriage. Let's utilize a fictional scenario based on a compilation of several actual cases to examine the law in Ontario.

Harry, 85, wants to marry 75-year-old Esther, but he does not want to lose his widower’s pension. They agree not to obtain a marriage license or register the marriage, but instead to have only a ritual ceremony in a rabbi’s office. Harry dies and his will leaves his assets to his children. Having in mind that Ontario's legislation revokes Wills made before marriage does only a religious marriage ceremony give Esther any rights to Harry’s estate?

Esther’s lawyers would argue that by virtue of the Succession Law Reform Act, a will is revoked by a legal marriage. When a person dies and he or she has no will then the person is said to die intestate. Under the laws of intestacy in Ontario, Esther should get a preferential share of the estate (the first $200,000) and a portion of the balance.

The lawyer for Harry’s children would point to Deborah v Deborah 1999. This case went to the Ontario Court of Appeal, which ruled that a religious Jewish marriage alone would not qualify a spouse for property rights under the Family Law Act. Since the definition of “spouse” in the legislation that deals with revocation of wills by marriage (the Succession Law Reform Act) is virtually identical with the Family Law Act Harry’s children would argue that a ritual marriage alone does not revoke Harry’s will.

The issue would likely be decided on the basis of section 31 of the Marriage Act, which states: “If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act…and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage….” In Deborah v Deborah the court did not accept that the marriage was solemnized in good faith because they purposefully did not intend to be in compliance with the act. If Esther, in good faith, believed that her ritual marriage was being conducted pursuant to Ontario law and she lived with Harry as husband and wife, then it is arguable that the legislation would deem the union to be a valid marriage that would revoke the will.

Charles B. Wagner of Wagner & Associates, is a lawyer and litigator whose practice focuses on Commercial and Estate Litigation.

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