Every will is revocable even a will, whose terms purport to make it irrevocable, is in fact revocable.
Generally speaking a will may be either be revoked by the operation of law or may be deliberately revoked by the testator .
Deliberate revocation requires a voluntary act by a testator which is done with a specific intention to revoke the will. Unless the testator has this specific intention to revoke the will, then even the physical destruction of a will, does not revoke that will.
Revocation may sometimes occur, inadvertently, by operation of law in circumstances involving a change in the marital status of the testator. In such cases involving marriage or divorce, our B.C. law may deem there to be a revocation of the entire or portion of a previous will.
In this article we will briefly sketch the law surrounding the revocation of wills. We will also examine the presumption of revocation which may arise where the original will cannot be found.
The Wills Act
In British Columbia the Wills Act sets forth the statutory law relating to wills revocation.
Sections 14 and 15 of the Wills Act in effect provide that a will, or part of a will, is revoked in the following circumstances:
(1) upon the subsequent marriage of the testator unless the will contains a declaration that the will is made in contemplation of that marriage;
(2)by another will made in accordance with the Wills Act. i.e. formally executed;
(3)by a written declaration of revocation made by the testator in accordance with the Wills Act, i.e. formally executed; and
(4)by the destruction of a will, in the presence of a testator who intends to destroy the will in order to revoke it. The destruction may be effected by the testator personally or effected by another person, at the testator’s direction and in his or her presence.
The Act, s. 16 further provides that where a marriage is effectively ended by divorce, by a judicial separation or by court order of annulment, then any gift or power of appointment given by will to a former spouse shall be deemed to be revoked. Similarly any testamentary appointment of the former spouse as executor or trustee will be deemed to be revoked. In either circumstances, the will shall take effect as if the spouse has predeceased the testator. The only exception to such deemed revocations are cases where a contrary intention specifically appears in the will.
REVOCATION OF A WILL BY MARRIAGE
As noted above, the testator’s marriage will automatically revoke any existing wills and codicils. This revocation occurs by operation of law, whether or not the testator wishes or intends such a revocation.
Unfortunately not all marriage partners will be aware of this deemed revocation and the law may occasionally be viewed as creating some hardship to the disappointed beneficiaries. The rationale for this rule however, is to ensure that any children and new spouse will benefit, i.e by creating an intestacy in the absence of a new will.
An exception to this general rule is made if, and only if, the will contains a specific declaration that it is made in contemplation of marriage to a specific person.
To fit within this exception, the will must make it clear that that the testator contemplated marriage to a specific person, not simply marriage in general. The best practice for the drafter of such a testament will be to name the intended spouse, describe him or her as fiance or fiancee and set forth the intention to make this will in contemplation of marriage to that named fiance(e).
By way of example, in Re Pluto (1969) 69 W.W.R. 765, the Supreme Court of British Columbia held that the testator’s will, leaving “all to my wife” and specifically naming her, was nevertheless revoked by his marriage to that woman the following day.
This is not a situation in which one wishes his or her client to be found. It can be avoided by including a clear indication that the testator intends to marry the fiance(e) named and is making this will in contemplation of that marriage.
REVOCATION BY A VOLUNTARY ACT
Pursuant to s. 14 of the Wills Act, a will may be revoked, in whole or in part, by the formal execution of a written declaration of revocation, whether this declaration stands alone or is found as part of a subsequent will or codicil. To be effective, however, the testator must intend to rescind the prior will, in whole or in part.
s. 14 requires both a written declaration expressing the testator’s intent to revoke the prior will and requires that such a declaration be properly executed in compliance with the Wills Act formalities. Most often the revocation will be included in a new will or codicil however that is not required so long as the declaration of revocation is properly executed in compliance with the Wills Act formalities .
Although the Wills Act specifically permits the partial revocation of a will, such a practice may be risky because codicils or partial revocations can sometimes unfortunately create unintended confusion. From a practice standpoint therefore, where a testator wishes to make changes to a previous will, we suggest the safest practice is usually to start again by drawing a new will revoking the previous will entirely and thus avoiding any confusion. We recommend that generally speaking codicils not be used.
Wills in Multiple Jurisdictions
Another practice concern can be multiple wills made in various jurisdictions. For example, one case we had involved a Canadian who made a Mexican will providing for the disposition of his Mexican real estate. Unfortunately that Mexican will contained a clause revoking all previous wills, including a B.C. will which had dealt with the rest of the Deceased’s assets. The Deceased clearly intended to amend his B.C. will and relayed such instructions to his lawyer however he died suddenly before he could do so. His untimely death created an intestacy with respect to most of his estate which was found in B.C. He left several very disappointed beneficiaries. Accordingly, if a testator has wills in multiple jurisdictions, then drafting care must be taken to not inadvertently revoke previous wills in the other jurisdictions.
REVOCATION BY DESTRUCTION
As noted above, a will, or part of a will may be revoked by the destruction of the will by the testator or by the testator’s direction and in his or her presence, with the testator’s intention of revocation.
Notably the Wills Act requires both that the testator intend a revocation by destruction and be actually present for that destruction, whether it be the testator or his or her agent who physically effects the destruction.
Partial destruction will not revoke the entire will unless those parts of the will left intact cannot stand on their own.
The destruction must not merely be symbolic but result in actual physical injury to the will such as cutting the will into bits which could not be pieced together or total incineration.
The intention to revoke, no matter how clear it may be, is not enough without a completed act of destruction of the will. Similarly, destruction without intention to revoke does not revoke the will.
In Re Krushel Estate (1990) 40 E.T.R. 129, torn bits were found in a bag of garbage after the deceased shot himself. The court held that the throwing away of a mutilated will did not amount to revocation because it was not proven that the mutilation was done at the request of the deceased.
This decision was followed by the Nova Scotia Court of Appeal in Re Theriault estate (1997) N.S.J.No.36, where a will stored at the lawyer’s office was destroyed by an accidental fire. Subsequently the testator gave some indication of treating the fire as a revocation after the fact.
The court however refused to find a revocation by destruction because there was no evidence of intention to revoke the will at the relevant time, i.e. before the destruction.
It is possible to only have a partial revocation of the contents of a will, i.e to revoke only particular gifts or appointments made under a will. In Re Witham (1938) 3 D.L.R. 142 the court admitted to probate a will that had been mutilated by scissors with certain clauses cut out. The court made this finding because one of the clauses had been pinned back to the will in another place.
Similarly in the British case of Re Nunn (1936) 1 All E.R. 555, some lines had been cut out of the will of a deceased seamstress. The remaining parts of the will had been neatly stitched back together. The evidence established that the testatrix had carefully retained the will in her exclusive possession until death. Thus although the court ruled the deceased seamstress had destroyed the missing lines with the intention of revoking them, the court found no intention to destroy the entire will. The court thus found a partial revocation.
OBLITERATIONS OR IMPERFECT ALTERATIONS
In some cases, a testator may purport to alter a will by crossing out and writing in some new provisions. Such attempted changes are generally not enforceable because the court will likely find this to be an attempted alteration rather than a properly executed revocation.
One twist on these facts arises where a testator succeeds in obliterating words so they become completely indecipherable. In this case, the court will not reinstate the deleted words but instead will grant probate to the will with a blank space left for the obliterated words. See Re Hebert (1927) 3 W.W.R. 24.
A complete obliteration can be an effective revocation even in the absence of evidence that the obliteration was effected by, or on behalf of, the testator and in his or her presence. In such a case there will be a presumption that the obliteration was made by the testator personally.
If the original words are still apparent, for example by holding the will up to the light, then any alteration will not be effective unless it is properly executed. In the case of Finch v. Combe (1894) P.191 at 198the obliterated portion became legible once held up to window and the court thus held that there was no revocation.
The court will not excise or erase scratches or blots that obliterate part of the will nor will they remove paper pasted over part of the will. Nevertheless the court may allow the assistance of experts to decipher the words.
LOST WILLS THE PRESUMPTION OF REVOCATION
Where a destroyed or mutilated will is found amongst the testator’s papers or wherever such a will might normally be expected to be found, the law will presume that the act of destruction was committed by the testator and that it was done with the intention to revoke the will.
Further, where a will or codicil is missing after death and that document was last known to be in the testator’s possession, then the will or codicil will be presumed to have been destroyed by the testator with the intention of revoking it. The strength of this presumption of revocation varies according to the security of the testator’s custody of the will. In other words, the presumption will be stronger where the will was kept by the testator in clearly secure circumstances.
In Sigurdson vs Sigurdson (1935) 4 D.L.R. 529 (S.C.C.) this principle was stated as follows:
“Where a will duly executed, traced to the testator’s possession and last seen there, is not forthcoming on his death, the presumption is that it was destroyed by himself. To rebut that there must be sufficient evidence that it was not destroyed by the testator animo revocandi” (i.e. with the intention to revoke it).
This presumption may be rebutted by evidence of non-revocation, such as evidence of an accidental destruction of the will- for example a residential house fire. It may also be rebutted by evidence tending to show that testator did not intend to revoke the will but rather continued to reaffirm the terms of the will and to evince good will to the named beneficiaries.
We had one recent case where an older woman, a compulsive hoarder, had made a will leaving her entire estate to her goddaughter who was in fact her surrogate daughter. After her death only a copy of the will could be found. Numerous affidavits from the deceased’s long term friends and minister attested to her very close relationship with the goddaughter, and her numerous reaffirmations of her intention to leave her estate to this goddaughter. Distant relatives argued for an intestacy however a copy of the will was successfully admitted to probate.
This presumption of destruction will not apply where it is shown that the original will was not in possession of the testator, but was rather in the possession of a solicitor. Re Quinlan (1985) 63 N.B.R. (2d) 429
If the testator executed the will while he or she was of sound mind, but subsequently became mentally incompetent, then there is no presumption that the destruction was carried out by the testator at a time when he or she was of sound mind.
Where a potential executor or heir seeks to establish the validity of a missing will or to seek probate of a copy of the will, then the applicant must establish:
1) The proper execution of the original will. (This is usually accomplished by the evidence of the attesting witnesses or the lawyer or notary who prepared the will and attended execution)
2) The terms of the original will. (This is usually accomplished with a copy of the will however some cases rely on the notes of the drafting solicitor and others on the evidence of a person who read the will before it was lost.)
3) That the presumption of revocation has been overcome and there is another explanation, for the loss or destruction of the will, other than destruction and revocation by the Deceased.
The standard of proof required is the civil standard, that is proof on the balance of probabilities.
What happens when a will or codicil is revoked by a later will and that later will is ultimately found to be ineffective?
In such a case, for example where the new will is struck down for improper execution, lack of mental capacity, undue influence or the like, the court may breathe life back into the previous will. It may do so by applying the doctrine of conditional revocation and finding that the testator’s intention to revoke the first will was conditional on the new will being an effective substitution for it. The court will apply this doctrine to avoid an intestacy and admit the previous will into probate.
Hopefully this paper will give the reader some sense of the many pitfalls to be avoided in advising clients about making changes to their current wills and the need for new wills when they change their marital status. It is particularly important to advise testator’s to safeguard their original wills to avoid the presumption of revocation that arises when the original will cannot be located. The Law Society of British Columbia cautions lawyers not to keep their client’s original wills for safekeeping due to concern about potential liability should the original wills be lost. Many testators seem to believe that the document that they possess is only a copy of the original and they often write intended changes to be made on the original will. Lastly, although it is not mandatory, all practitioners who prepare wills should have them registered with the Director of Vital Statistics by filing a wills notice for each will or codicil that is executed.