Saskatchewan Estate Litigation Update: Vance (Re), 2021 SKQB 320

The recent decision in Vance (Re), 2021 SKQB 320, reminds us of the importance of keeping our wills updated.

The application in Vance was brought by De-Anna Lynn Bailey, in relation to the estate of her nephew, James Benjamin Gilbert Vance (“Deceased”).

Background

To understand the outcome in Vance, we need to understand the effect of s. 17 of the s. 17 of The Wills Act, 1996, SS 1996, c W-14.1. S. 17 was only recently repealed. Before March 2020 the provision provided as follows:

17(1)   A will is revoked when:

1. the testator marries; or
2. the testator has cohabited in a spousal relationship continuously for two years.

Revocation by marriage was a historical principle of law.  Previously, the law felt that, entering into a spousal relationship, either by cohabiting or formal act of marriage, was a significant step that changed the legal landscape of the person involved. As a result, the legislature had concluded that any prior testamentary disposition will not be considered valid in the face of the new spousal reality.

In Vance, the factual situation meant that the prior will made by the Deceased had been revoked by his common law relationship. The chronology ran as follows:

1. The Deceased made his will in October 2004. In the will, De-Anna Lynn Bailey was named as the beneficiary of the Deceased’s estate;
2. In 2012, the deceased Christina Laturnas began cohabiting in a spousal relationship;
3. In 2014 (the second anniversary date of the commencement of the deceased’s cohabitation with Ms. Laturnas), the 2004 Will was deemed revoked by virtue of  17(1)(b) of the Act(as it then read);
4. In January 2020, the deceased and Ms. Laturnas separated and were no longer living together;
5. On March 16, 2020,  16(a)and 17 of the Act were repealed. However, the legislature did not specify that the repeal applied to wills already revoked by marriages or spousal relationships. Rather, the repeal appeared to only apply to future events; and
6. On June 6, 2021, the deceased died.

Thus, the issue in Vance was primarily whether the amendment to s. 17 was retroactive, and whether the amendment could “revive” the 2004 Will.

Decision in Vance:

As the court held “the issue here is whether the amendments to the Act were retroactive, with the result that the 2004 will was never revoked at all or was revived.” (para 7)

Vance held that, regrettably for De-Anna Lynn Bailey, the repeal to s. 17 was not retroactive. The Court relied on the principle that when a legislature changes the law, that change will “only apply retroactively where the legislature has clearly indicated that it has weighed the benefits of retroactivity with its potential unfairness or disruption.”

The Court in Vance was being asked to turn back time and revive the Deceased’s 2004 will long after it has been deemed revoked. As the amendment to s. 17 was not retroactive, the Court did not have the power to do this. Simply put, the legislature did not explicitly indicate that the repeal to s. 17 was to operate retroactively.

Lessons:

Vance shows us that the amendment to s. 17 is not retroactive. While the result in Vance was legally correct, it was a harsh (and unfair) blow to De-Anna Lynn Bailey, who understandably felt that the Deceased truly wished her to inherit his estate.

Most non-lawyers are not aware of the issue of revocation by marriage. There was no evidence referenced in this decision, showing that the Deceased knew that his spousal relationship in 2014 had operated to revoke his 2004 will. As a result, the Deceased likely wished De-Anna Lynn Bailey to receive his property. Because of the technicality of revocation by marriage, this did not occur, and the intentions of the Deceased were not given effect to.

Vance is a reminder that all persons should have an updated will. Here, if the Deceased had kept his will updated after the ending of his relationship with Christina Laturnas, there would have been an updated testamentary document in place, reflecting his actual intentions. This is in no way to cast blame on the Deceased, as there are likely millions of Canadians who have a will which is out of date. Nevertheless, as Vance shows, the alternative may be a harsh one.