I must confess to being astonished by the above opinion. I have never heard of a pre-nuptial agreement overriding a testamentary disposition. Naturgrl speaks in the clearest of terms, so I'll assume she knows for sure. Perhaps she is a wills & estates lawyer, which I am not, and her knowledge base is superior. In my law practice, in the early days, I did some wills and estates law, but never got too deep into it. So my knowledge could just be deficient in some respects.
Nevertheless, I remain mildly taken aback by Naturgrl's strong opinion because, even though I cannot hold myself out as a wills & estates practitioner, some of my lack of personal experience is mitigated by my research experience. I have read almost every judgment from every court in British Columbia starting at January 1, 1982. So, along with cases touching on all areas of he law, I have read all the wills and estates cases. Not many out there have done that. That includes all Supreme Court of Canada cases that had their genesis in BC. In all of that, I do not recall encountering a case in which the language of a pre-nuptial agreement (now more generally known in BC as a "marriage agreement", prevailed over the language of a will. I am reinforced in my view that, at least in BC it does not, in light of,
inter alia, this provision of the Wills, Estates and Succession Act:
Property that can be gifted by will
- 41 (1) A person may, by will, make a gift of property to which he or she is entitled at law or in equity at the time of his or her death, including property acquired before, on or after the date the will is made.
- (2) Unless a contrary intention appears in a will, when a will refers to property, the will, with respect to the property, is to be interpreted as if it had been made immediately before the death of the will-maker.
- (3) A gift in a will
- (a) takes effect according to its terms, and
- (b) subject to the terms of the gift, gives to the recipient of the gift every legal or equitable interest in the property that the will-maker had the legal capacity to give.
I draw particular sustenance from this phrase:
the will, with respect to the property, is to be interpreted as if it had been made immediately before the death of the will-maker. I construe that wording to mean, for example, something along these lines: Let's say husband (H) and wife (W) enter into a pre-nuptial agreement. In that agreement they agree that the house owned by the husband at the date of marriage is his "excluded property" (a Family Law Act term). They expressly agree that W will never have any claim to it. Now, let's suppose, a few years later, H dies, leaving a will. The will says H leaves his house to W. Can some saucy intruder now pull the pre-nuptial agreement out of a hat, and come forward and say to W "not so fast there honey, this here document says you don't get the house, so get lost? Can that really happen?
Remember, the Act says the will is to be construed as speaking immediately before the testator's death. Can the pre-nup speak any louder? I would say no.
I am also disinclined to accept that any marriage agreement can render nugatory will provisions simply on my knowledge that the validity of marriage agreements is open to attack on many grounds, including (but not limited to) lack of independent legal advice, unfairness, fraud, oppression, misrepresentation, failure to make full financial disclosure.
I'll draw an even longer bow here since, the more I think about it, the more I can see cause why a marriage agreement should be ignored and regarded as spent upon the demise of a party to it. First of all, such agreements are not generally regarded as testamentary dispositions. And, in the absence of a will, most, if not all, provinces have legislation setting out who gets what out of the estate, with spouses and children standing first in line. So, upon an intestacy, does one applying for letters of administration, have to undertake a search for a pre-nup and attempt to interpret and apply its terms as more authoritative than the statute? That strikes me as a foundation resting on sand. One can ask, similarly, in the case of an executor applying for letters probate, must said executor cast about to see if there's a pre-nup out there somewhere, perhaps shrouded in the mists of time, that will cause the will to be regarded as a thing writ in water?
Naturgrl is aware of many situations where the pre-nup has prevailed and I would welcome any input from her as to the jurisdiction in which that has occurred and, if she can share any case law, I would appreciate reading it, to see the kind of reasoning employed by the courts in arriving at that result.
In the end, I'll echo Naturgrl's advice to seek legal advice. No one here can sort all of this out for you online on a forum, particularly on a forum dedicated to immigration issues. We have indulged in something of a diversion here. I mentioned to Lawyer Referral Service. It can be a good starting point if you have no other legal resources to hand and the first 30 minutes of consultation will be at no charge.
