Marriage Voids a Will


In 2012, two interesting issues in estate planning intersected in the case of Petch v. Kuivila.

Firstly the law in Ontario provides that a Will done prior to marriage is automatically revoked by the marriage.

The second issue is that Designated Assets (RSPs, RIFs and Life Insurance) do not fall into the Will they pass to a designated beneficiary.  However a will can contain a clause changing designating beneficiaries under RSPs, RIFs and life insurance policies.

The Petch case considered what should happen if a will is voided by a marriage.  Should the beneficiary designations contained in the will also be voided?

Designated Assets

“Designated Assets” do not become a part of the estate on death.  They pass directly to the designated beneficiary.  This is a function of the Insurance Act.

Designated Assets are not available to the estate to pay the debts of the estate.  They are not subject to probate fees.

The Insurance Act allows a Will to include a Declaration revoking a beneficiary on a Designated Asset and appointing a new beneficiary.

It is always advisable to check beneficiary designations prior to preparing a Will and to keep designations up to date.

Relying on beneficiary declarations in a Will is not our preferred approach.  It is preferable that the beneficiary designation be done clearly and preferably on the bank or insurer’s forms.  This will help ensure that payment is made promptly in accordance with your wishes.

Marriage Revokes a Prior Will

Legally, any Will done prior to marriage is automatically revoked by the marriage.  Anyone who has married since last preparing a Will, does not have a valid Will.

There are three exceptions to this general rule (only two will be discussed in this note). 

A Will can be prepared in contemplation of marriage. This is our preferred approach as marriages are traditionally followed by honeymoons and periods of hectic activity during which estate planning can be overlooked.

Within certain strict time limits, the new spouse may elect to proceed under the old Will, which often means that the old Will names the spouse as beneficiary.

Petch v. Kuivila (2012)

The testator owned a life insurance policy.  In 2003, he designated his sister as the beneficiary under that policy.

In 2004 the testator prepared a Will which contained a Declaration revoking the designation of his sister and naming his girlfriend as the beneficiary.

In 2008 the testator married his girlfriend but did not prepare a new Will.  The wife/girlfriend did not file an election to “validate” the Will within the time specified by law.

The court concluded that the Will was revoked by marriage. However, the Declaration revoking the sister as designated beneficiary in the 2004 Will remained effective.  The appointment of the wife/girlfriend as new beneficiary was invalid.

Therefore the death benefit was not paid to the sister or the wife.  The death benefit became a part of the estate and distributed in accordance with the laws of intestacy.


There are four fundamental lessons to be learned from the Petch decision.

Always keep your estate plan and beneficiary designations up to date.

Marriage revokes a Will. Always prepare a Will in contemplation of marriage.

Use a lawyer familiar with estates law and seek counsel immediately, there are critical dates which should not be missed.  In the Petch Case, the wife could have made an election to validate the will.

The goal of a good estate plan is to provide stable and predictable results.  Litigation can be very expensive and outcomes are not always predictable.

Prepared by Ismail Barmania of Barmania-Lawyers (416-777-4016).