Impact of the Amendments to the Succession Law Reform Act Regarding Marriage and Separation

As of January 1, 2022 amendments made to the SLRA (Succession Law Reform Act) came into force. The amendments will have an impact on the future of will drafting in terms of marriage and separation.

The first important change to note is that a marriage will no longer automatically revoke an existing will.

As per Section 17(1):

“Except as otherwise provided in this section, a will is not revoked by presumption of an intention to revoke it on the ground of a change in circumstances”.

This applies to wills that were signed after January 1, 2022 or were signed prior to January 1, 2022 but the marriage did not take place until after January 1, 2022. This amendment provides protection against an unintended revocation of a will.

The second important change to note is that separated spouses will now also lose appointments and entitlements under a will, in a similar way that divorced spouses do. Section 17(2) is now extended to separated spouses under Section 17(3): “Subsection (2) applies, with necessary modifications, on the death of the testator, if the spouses are separated at the time of the testator’s death, as determined under subsection (4).” However, it is still required that the individuals meet the definition of separated spouses as outlined in:

Section 17(4):

“(4) A spouse is considered to be separated from the testator at the time of the testator’s death for the purposes of subsection (3), if,

(a) before the testator’s death,
(i) they lived separate and apart as a result of the breakdown of their marriage for a period of three years, if the period immediately preceded the death,
(ii) they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,
(iii) a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or
(iv) a family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and

(b) at the time of the testator’s death, they were living separate and apart as a result of the breakdown of their marriage.”

Therefore, although another welcomed change as it will have an impact on those that have been long separated but have not finalized their divorce, the individuals will still need to meet the threshold of separated as described in the legislation to benefit.