Why an Out-of-Date Will Is Sometimes Worse Than No Will

A 71-year-old man in Hamilton dies with a will written in 1996. The will names his then-wife as executor and sole residuary beneficiary, with the residue going to his two children only if she had predeceased him. He divorced her in 2003, remarried in 2006, and had a third child with his second wife in 2008. He never updated the will. After his death, Ontario law treats the divorce as voiding the gifts to the first wife — so she gets nothing — but the residue clause still names her, and the only "alternate" beneficiaries are the two adult children from the first marriage. The second wife and the youngest child receive nothing under the will. The second wife eventually applies under Ontario's Family Law Act for an election against the estate and a dependant's relief application is filed for the youngest child. The estate fights through court for two and a half years. The legal cost runs roughly 22% of the estate's value.

This kind of outcome happens more often than most Canadians realize, and the cause is rarely a missing will — it is a will that no one updated as life moved on.

What "out of date" actually means #

A Canadian will is valid forever once properly executed. There is no expiry. It does not lapse, automatically refresh, or get nudged by the registry. The legal effect of a will is locked in at the date of signing, and that locked-in instrument is what governs the estate at the testator's death — sometimes decades later.

"Out of date" is shorthand for a will whose content no longer matches the testator's current life. The will is legally fine; the will-meets-reality match has decayed. Three patterns drive most cases:

The named people have moved, changed, or died. The executor has died. The guardian has aged into retirement and moved to BC. The beneficiary has fallen out with the family or predeceased the testator.

The asset picture has shifted. A specific bequest references a property that has been sold. A residue clause assumes a value distribution that no longer holds — what was a $200,000 estate twenty years ago is a $1.8M estate today, and the equal-shares pattern that felt fair then now feels lopsided.

The family structure has changed. A new spouse, a new child, a divorce, an adoption, a deceased beneficiary. The will speaks to a family that no longer exists.

How an outdated will harms — three concrete failure modes #

Failure mode one — the dead executor. A will names a single executor and no alternate. If that executor has died (or become incapacitated, or is unwilling to act) by the time the testator dies, the will does not lapse, but the estate is left without anyone formally appointed. A court application is required to appoint an administrator with will annexed, costing the estate time and roughly $2,500 to $5,000 in legal fees. Most modern Canadian wills name two or three alternates for exactly this reason.

Failure mode two — the lapsed gift. A specific bequest to a person who predeceases the testator generally lapses — meaning the gift fails and the item or amount falls into the residue. In some provinces, anti-lapse statutes save gifts to predeceased descendants (so the deceased child's children inherit the gift instead), but the rules vary, and gifts to predeceased non-relatives almost always lapse cleanly. A 30-year-old will leaving "my jewellery to my sister Helen" when Helen died ten years ago means the jewellery now drops into residue, often going to people the testator never intended to favour with it.

Failure mode three — the wrong residuary structure. This is the most damaging. A residue clause written before a divorce, a remarriage, or a new child often leaves the new family unprovided for. The clause still binds — the law treats the will as the testator's settled intention — but the result no longer matches anyone's idea of what is fair. The new family sues. The estate pays both sides' legal fees through years of litigation. The intestacy rules would have produced a fairer distribution.

Provincial variation on what life events do #

Different provinces handle the major life events differently. The rules are not intuitive and have changed in recent years.

Marriage. Historically, marriage automatically revoked a Canadian will unless the will was made "in contemplation of marriage". Four provinces have abolished this rule so far — Ontario as of January 1, 2022 (Bill 245),^[5] Alberta in 2012, BC in 2014, and Saskatchewan as of March 16, 2020^[6] — so a will made before marriage now generally survives in those provinces. Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador still revoke a will on marriage (or, in some of these provinces, on marriage-like cohabitation) unless the will was made in contemplation of that marriage. Province-by-province confirmation is worthwhile before relying on a pre-marriage will.

Divorce. Across every common-law province, a final divorce judgment generally voids gifts to and the executor appointment of a former spouse, but the rest of the will continues in effect.^[1][4] The will is treated as if the former spouse had predeceased the testator. Separation without divorce does NOT have the same effect in most provinces — a couple who has been separated for ten years but never formally divorced may still have wills that benefit each other, exactly as drafted.

Birth or adoption of a child. Not a revocation event in any province. A new child does not change the will; the will continues as it was, and the new child receives only what the will gives them — which, for a will written before the child existed, is generally nothing.

Death of a beneficiary. Not a revocation. The lapse rules above apply.

Moving provinces. Not a revocation. A will validly executed in one Canadian province is generally valid in any other Canadian province, but the substantive interpretation rules of the new province now apply.

When an outdated will is genuinely worse than no will #

There is a counterintuitive case to be made — and most Canadian estate lawyers will quietly agree — that some outdated wills produce worse outcomes than dying intestate.

Intestacy rules in each province are designed to produce a sensible default distribution: a fixed preferential share to the surviving spouse, then a per-child split of the remainder, with a fallback to next-of-kin. The rules are not perfect, but they are designed to match the typical Canadian family pattern.

An outdated will, in contrast, is locked to a family pattern that may no longer exist. A 1989 will leaving everything to a now-ex-spouse and that spouse's children from a prior marriage — in a family where the testator has since remarried and had three more children — distributes the estate to the wrong people. Intestacy would have given the current spouse and current children their default shares; the outdated will diverts the estate elsewhere.

This is not an argument for tearing up an out-of-date will. It is an argument for updating it — quickly, and ideally before the next major life event.

The cost of updating vs the cost of not #

A simple will rewrite from a Canadian lawyer costs $400 to $700. An assisted will service produces a complete updated will for under $200. Either is dramatically cheaper than the cost of administering an estate under an outdated will — which, in the contested cases that hit court, can consume 15% to 30% of the estate.

The trigger for a review is either a calendar event (every three to five years) or a life event (marriage, divorce, birth, death, major asset change, province change). A short note on the cover sheet of the will — "Reviewed and confirmed current: [date]" — is a useful discipline. A will that has not been reviewed in a decade is almost certainly out of date in some material way.

A practical update checklist #

Before signing an updated will, run through these checks:

The named executor is still alive, still willing, still in the same province as the estate, and still on good terms with the family. At least one named alternate executor.

The named guardian (if minor children) is still in a life position to take on the responsibility. At least one named alternate guardian.

Every specific bequest references a person who is still alive (and someone the testator still wants to benefit) and an asset the testator still owns.

The residue clause matches the current family — current spouse, current children, current step-children if intended. The residue allocation between people reflects current intent.

Any province-specific clauses still match the province the testator lives in. (A will written in Ontario then a move to BC sometimes needs reworking because BC's WESA differs in several technical ways from Ontario's SLRA.)

What we focus on at It's Simple Will #

It's Simple Will is built for the rebuild-from-scratch case — when the old will is far enough out of date that a codicil cannot reach it. Our flow walks every section of the will against the current family, current assets, and current province, so the resulting document reflects the testator's life as it is now, not as it was twenty years ago.

For the structural rules, see our pillar on how to write a will in Canada. For the surgical-update case, see our companion article on codicils. For the major triggering events, see updating your will after a baby, divorce and your will, and moving provinces — do you need a new will.