Does Divorce Cancel Your Will in Saskatchewan? What Changes

You are separated, or going through a divorce, and your will still names your spouse as the person who inherits or who handles your estate. You may be wondering whether the will still works, whether the divorce quietly fixes it, or whether you need to act now.

Saskatchewan's Wills Act, 1996 has a specific rule about what happens to a will on divorce. It is narrower than many people assume, and it does not cover every step of separation. This article explains what the rule does, what it leaves alone, and what to review.

This is general information, not advice on your own will.

This article covers the law of Saskatchewan.

What the Wills Act says happens on divorce

Section 19 of the Wills Act, 1996 is titled "Effect of divorce, etc." On divorce, a gift to the former spouse and the appointment of the former spouse as executor are revoked unless the will says otherwise.

In plain words, the divorce does not cancel the will as a whole. It removes the specific parts of the will that benefit or appoint your former spouse. Whether the rest of the will works as you intended depends on how it was written, which is why a lawyer should read it with you.

• A gift to your former spouse is revoked.
• Your former spouse's appointment as executor is revoked.
• Both outcomes apply unless the will expressly says otherwise.

Separation compared with a final divorce

The rule in the Wills Act is tied to divorce, not to the day you stop living together. A divorce takes effect on the 31st day after the day the judgment granting it is rendered, although a court can order an earlier effective date in special circumstances if the spouses agree not to appeal. Until a divorce is final, you should assume your spouse is still your spouse for the purposes of your will, and that the will may still read exactly as you signed it. A lawyer can confirm how the timing works in your situation.

Separation can take a long time. For divorce purposes, the usual ground is that spouses have lived separate and apart for at least one year. Spouses can be treated as separate and apart even while living under the same roof, if one of them intends to live separately. None of that, on its own, rewrites your will.

Common-law partners and unmarried spouses

If you were not married, the Act still has a rule, but it works on a different clock. For unmarried spouses, the revocation happens after they have ceased cohabiting in a spousal relationship for at least 24 months.

That means a breakup between unmarried partners does not automatically change a will for two years. During that period, a will naming your former partner can still operate as written. If you do not want that, update the will rather than wait.

Why you should not rely on the automatic rule

The automatic rule is a safety net, not a plan. Several things can go wrong if you leave it alone.

• A will that expressly says otherwise keeps the gift or executor appointment despite divorce. If your will says your spouse benefits no matter what, the divorce will not remove that.
• The rule only deals with gifts to the former spouse and the executor appointment. It does not decide who should inherit instead, or who should act as executor, so you still need to choose.
• A will is not changed by marriage or by two or more years in a spousal relationship. A new relationship does not update your will for you.
• Other documents and arrangements, such as beneficiary designations on accounts or policies, jointly owned property, and powers of attorney, work under their own rules. Whether they change on divorce depends on the document, and a lawyer can confirm.

If the gift is revoked, the property it covered has to go somewhere. What happens to it depends on how the will is worded, and the result may not be what you would have chosen.

What to do next

Review your will now rather than after the divorce is final. How updating your will fits with your separation or divorce depends on your situation, so it is worth confirming with a lawyer. Separately, agreements between you and your spouse about separation, support, property or parenting are not collusion for the purposes of a divorce.

• Find your current will and read who it names as beneficiary and executor.
• Note whether the will contains wording that keeps gifts to your spouse despite divorce.
• List your accounts, policies and other documents that name your spouse.
• Decide who should inherit and who should act as your executor in place of your spouse.
• Check whether any separation agreement or court order affects what you can leave to your spouse or children.
• Meet with a lawyer to update your will, and ask what else should change.
• Plan to review again once the divorce takes effect and once the family property is divided.

Frequently asked questions