The introduction of the Wills Estates and Succession act (WESA) on March 31,2014 made a few significant changes to the law relating to the revocation of wills.
Probably the most significant change was that marriage after the execution of a will no longer revokes a will. This largely unknown fact had created much hardship in estate law over a long period of time.
The other significant change is the insertion of section 58 WESA known as the curative provision for otherwise defective wills.
Section 55 of WESA provides as follows:
55 (1) A will or part of a will is revoked only in one or more of the following circumstances:
- by another will made by the will-maker in accordance with this Act;
- by a written declaration of the will-maker that revokes all or part of a will made in accordance with section 37 ;
- by the will-maker, or a person in the presence of the will-maker and by the will-maker’s direction, burning, tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it;
- by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker’s direction, if the court determines under section 58 that
(i) the consequence of the act of the will-maker or the other person is apparent on the face of the will, and
(ii) the act was done with the intent of the will-maker to revoke the will in whole or in part.
(2) A will is not revoked in whole or in part by presuming an intention to revoke it because of a change in circumstances.
It should be stated at the outset that section 58 WESA which is discussed later in this paper may well alter the common law stated hereafter quite dramatically if it is applied in the same sweeping effect that the courts have used that section to cure defective wills. To date there have been no reported cases on how the courts will apply section 58 WESA to remedy defective revocations, but I anticipate that the effects will be dramatic.
Voluntary Revocation can be accomplished by any of the following:
- by executing a subsequent will or codicil that typically contains a revocation clause of the previous will;
- a written declaration declaring an intention to revoke a will and duly executed in the same prescribed manner as a will;
- by burning, tearing or otherwise destroying the will by the testator or by someone in the presence and by the direction of the testator
The execution of a subsequent will or codicil is by far the most common method of revoking a will.
In fact, when a testamentary document is valid and contains a revocation clause , there is a very heavy onus on anyone attacking the will attempting to argue that the revocation clause was not intended to be operative. McCarthy v Fawcett ( 1945) 1 W.W.R. 70 ( B.C.C.A)
Drawing a line through the signature and adding the words I hereby revoke this will was held to be of no legal effect in Bell v. Matthewman ( 1920) 49 O.L.R 364.
A letter properly attested by two witnesses and addressed to the bank manager who held the original will on deposit stating â€œ will you please destroy the will already made out was held to have effectively revoked the will in Re Spracklan ( 1938) 2 All E.R. 730.
With respect to the destruction of a will, there must be both the act of destruction as well as the intention to destroy the will and any symbolic destruction will not suffice. Partial tearing of the will which leaves the words legible does not necessarily show an intention to revoke. There must be such an injury with intent to revoke that it destroys the entirety of the will to have an effective revocation. Re Shafner ( 1956) 2 D.L.R. ( 2d) 593 ( N.S.C.A.)
The Common Law Presumption of Destruction
Very often in estate disputes the original or a will cannot be found and an attempt is made to probate a copy, giving rise to the legal issue as to whether the will had been destroyed or simply lost.
If an original duly executed will that was in the possession of the testator is not propounded upon death and the executor fails to prove that the original was not merely lost and not destroyed, then there is a common law presumption that is rebuttable by sufficient evidence that the will was destroyed by the testator, that the testator destroyed the will for the purpose of revoking it. Sigurdson v Sigurdson (1935) 4 DLR 529 ( S.C.C.) and Kumar v Kumari ( 1993) BCJ No. 108.
The evidence necessary to rebut the presumption of revocation need not be such as to amount to a positive certainty , but only such as to produce moral conviction. Re Matt estate ( 1954) 11 WWR ( NS) 28 ( Man.C.A).
The Sigurdson case ibid stated that the evidence to rebut the presumption of revocation must be clear and convincing to satisfy the court that the will had in fact been lost and not destroyed by the testator with an intention of revoking the will.
Various Factors of Consideration by the Court Whether the Presumption Applies
Haider v Kalugin 2008 BCSC 930 enumerated some of the factors the court will consider in deciding whether the presumption of revocation applies, and if so, whether it has been rebutted:
- whether the testator continued to have good relations with the named beneficiaries in the copy of the will up to the date of death;
- whether the terms of the will were reasonable
- the nature and character of the deceased in taking care of personal effects- ie orderly vs hoarding;
- statements made by the testator to either confirm or contradict the terms of the will copy;
- whether the deceased understood the consequences of having a will and the effects of an intestacy;
- were personal papers stored carefully or haphazardly;
The presumption of revocation does not apply where the original will cannot be traced to the possession of the testator. Brimicombe v Brimicombe Estate (2001) NSJ No. 157 (N.S.C.A). For example if the original was stored at the drafting lawyers office and the will was lost while there, the presumption would not apply.
SECTION 58 WESA
Section 58 of WESA, reads as follows:
58 (1) In this section, record includes data that
(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.
Section 58 WESA is a dramatic change to the law of revocation given that even if the document attempting to revoke a will is defective, if the court finds that the intention of the testator was to revoke the will, then under Section 58 (3) the court can cure the defect so as to give legal effect to the intention of the testator.
The â€œcurativeâ€ provisions of Section 58 was illustrated in Horton v Bruce 2017 BCSC 712 where the court remedied only the revocation clause and not the distributive clauses of a subsequent draft will that had been signed by the testator but not witnessed by two witnesses in the presence of each other. The legal effect of the imposition of Section 58 (3) was to cause the deceased to die intestate.
Horton v. Bruce relied upon a Supreme Court of Canada decision Bell Express Vu Limited Partnership v Rex 2002 SCC 42 for the authority to interpret Section 58 to give the courts the power to cure only a part of a document or a writing deemed to be a will, and not the entire document.
The effects of WESA will be dramatic upon the law of revocation of wills. Section 55 WESA abolished the revocation of a will by any marriage that takes place after March 31, 2014.
The effect of Section 58 WESA has yet to be recognized but the application of that section in the Horton v Bruce decision leads me to believe that Section 58 will be liberally applied to remedy any defective revocation if the court concludes that it was the intention of a testator to revoke a will but failed to do so in a manner that the common law previously demanded.