Severability Clauses in Canadian Wills
A severability clause is a small but important provision that preserves the rest of your Canadian Will if a single clause is struck down. Most lawyer-drafted Wills include one; online services typically include automatically.
What the clause says
Standard wording:
"If any provision of this Will is held to be invalid, illegal, or unenforceable, that provision shall be severed from this Will and the remaining provisions shall continue in full force and effect."
Or more thoroughly:
"If any provision of this Will is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be deemed severed from this Will, and the remaining provisions shall be construed and enforced as if the invalid provision had never been included. The invalidity of any provision shall not affect the validity of any other provision."
Why it matters
Wills contain many provisions, and any one can encounter trouble:
- A conditional bequest where the condition is held void as against public policy
- An in terrorem (no-contest) clause held unenforceable
- A charitable bequest where the charity no longer exists and there's no gift-over
- A specific provision violating provincial dependant relief statutes
- A clause based on incorrect understanding of provincial law
- Drafting errors creating ambiguity in one section
Without a severability clause, a court might (in some circumstances) treat the whole Will as compromised. With the clause, the bad provision is severed and the rest of the Will operates as intended.
When severability matters in practice
Scenario 1 — Failed condition. Testator leaves $100,000 to daughter "if she marries within our religion before age 30." Court holds the religion-based condition void. Severability clause means: the condition is severed, but the rest of the Will (executor appointment, residue clause, other bequests) continues normally.
Scenario 2 — Failed charitable bequest. Testator leaves $50,000 to a specific charity that has dissolved by the time of death, with no gift-over clause. The bequest fails. Severability means: this single bequest fails, but the Will's other provisions (including the residue clause) continue and the $50,000 falls to residue.
Scenario 3 — Unenforceable in terrorem clause. Testator includes a no-contest clause that's later held unenforceable. Severability means: the in terrorem clause is severed, but the Will's substantive bequests, executor appointment, and other provisions continue.
When severability doesn't help
Fundamental Will invalidity. If the Will fails for fundamental reasons — testamentary incapacity, improper execution, undue influence on the whole Will — severability doesn't preserve anything. There's no valid framework to operate within.
Provisions so central they can't be severed. If the executor clause is held invalid, can the rest of the Will operate? Typically no, because there's no one authorized to administer. Severability can preserve substantive bequests but the practical mechanism may still fail.
When the invalid provision is the residue clause. Severing the residue clause leaves no destination for residual estate. Falls to intestacy.
Drafting notes
Boilerplate position. Severability clauses typically appear near the end of the Will, in the "miscellaneous provisions" section, alongside the no-contest clause (if any), governing law clause, and similar provisions.
Combined with savings provisions. Some Wills include a combined severability/savings clause that addresses multiple potential issues:
"If any provision of this Will is held invalid or unenforceable, the remaining provisions shall continue in full force and effect. If any specific bequest fails for any reason (including the death or dissolution of the named beneficiary), the property comprising that bequest shall fall to the residue of my estate."
This double-protects — both severability for invalid provisions AND fall-to-residue for failed bequests.
What lawyer-drafted vs DIY Wills typically include
Lawyer-drafted Wills: Almost always include severability clause as standard boilerplate.
Online Will services: Typically include automatically.
Holograph Wills (handwritten): Often omit because they're shorter and the testator wasn't aware of the concept. Holograph Wills are valid without severability but more vulnerable to whole-document challenge if any specific provision is problematic.
Fully DIY Wills (free template): Vary widely; quality templates include, basic templates may not.
Should I worry if my Will doesn't have one?
If your Will is otherwise simple and well-drafted, the absence of a severability clause is unlikely to cause problems. Canadian courts generally try to preserve as much of a Will as possible (the principle of severance applies even without an explicit clause).
If your Will includes complex provisions (conditional bequests, in terrorem clauses, restricted charitable gifts, conditions touching marriage or religion), severability matters more. Consider updating to add the clause.
What we focus on at It's Simple Will
The Will Creator includes a severability clause automatically in its standard Will template. The clause is part of the boilerplate provisions that close out the Will document.
Related guides
Citations & sources
- [1]Canadian Bar Association — Wills, Estates and Trusts Section — Canadian Bar Association
- [2]CanLII — Canadian Legal Information Institute — CanLII
Frequently asked questions
What does a severability clause actually do?
It tells courts that if part of the Will is held invalid, the rest of the Will continues to operate. Without this clause, a court might (in some circumstances) treat the whole Will as compromised if a single provision fails. The clause is preventative — it makes clear the testator's intent that the Will should survive partial invalidity.
Do I need one in a Canadian Will?
Strongly recommended. Most lawyer-drafted Wills include this as standard boilerplate. Online Will services typically include automatically. The clause costs nothing to include and provides meaningful protection against unforeseen drafting issues.
When does severability actually matter?
When a court strikes down a specific provision — for example, an in terrorem clause held unenforceable, a conditional bequest with a void condition, a residual bequest to a charity that no longer exists, a clause that violates public policy. The severability clause preserves the rest of the Will so the executor can still administer.
What if there's no severability clause?
The court usually still tries to preserve as much of the Will as possible — this is the principle of severance even without an explicit clause. But explicit severability removes any doubt and is best practice.
Is severability the same as a 'savings clause'?
Closely related. A savings clause more broadly preserves the Will against various problems (severability is one element). Some lawyers draft a combined savings/severability clause. Specific wording varies.
Can severability rescue a Will that's fundamentally invalid?
No. Severability operates within an otherwise valid Will. If the Will itself is invalid for fundamental reasons (lack of testamentary capacity, improper execution, undue influence), severability doesn't help — there's no valid framework to preserve.