Revocation of Wills

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Compiled by Eric B. Appleby:

Generally

While provincial statutes vary, generally a will is revoked: – by a later valid will; – by a later writing declaring an intention to revoke and made in accordance with the relevant statute; – by burning, tearing or otherwise destroying the will by the testator; – by marriage of the testator.

Revocation by subsequent will

A subsequent will must completely dispose of the testator’s property in order to revoke a previously executed will or the subsequent will must express an intention to revoke the prior will. See Comerford Estate, Re (1980), 8 Man.R.(2d) 1 (Sur. Ct.).

Revocation by act of testator

The deceased’s original will was accidentally destroyed in a fire at his lawyer’s office. The Nova Scotia Court of Appeal held that the original will was not revoked by its destruction in the fire. See Theriault Estate, Re (1997), 157 N.S.R.(2d) 398; 462 A.P.R. 398 (C.A.). In 1980 a testator instructed her accountant to help her prepare a new will and she burned a 1973 will in the presence of the accountant. A new will was prepared, but it could not be proved that the woman executed it. The Newfoundland Supreme Court, Trial Division, held that the 1973 will was revoked by burning, notwithstanding that the woman intended to make a new will, but did not. See Hennissey’s Will, Re (1984), 46 Nfld. & P.E.I.R. 91; 135 A.P.R. 91 (Nfld. T.D.).

A husband and wife separated in 1996 after 27 years’ marriage. The husband’s 1987 will named his wife the sole beneficiary. A domestic contract purportedly released all claims the wife might have against the husband’s estate. The husband died in 1998 without revoking the 1987 will or making a new will. The executors of the husband’s estate applied for directions as to whether the ex-wife continued to take under the 1987 will or whether the will was invalidated by the divorce and/or the domestic contract. The New Brunswick Court of Queen’s Bench, Trial Division, held that the 1987 bequest was not nullified by either the domestic contract or the divorce. See Eccleston Estate, Re (1999), 221 N.B.R.(2d) 295; 567 A.P.R. 295 (T.D.).

Presumption of revocation where will is lost

The deceased executed a will in 1983. The deceased died in February 1985. Following his death neither his will nor the strong box he purportedly kept it in could be found. The executrix applied to the court for proof in solemn form of a copy of a 1983 document as the last will of the deceased. The New Brunswick Probate Court granted the application. The court found that there was no intention by the testator to revoke his will or change any dispositions in the will and that the will was missing because of the disappearance of the metal box where it was kept and not because of any intention of the testator. See Quinlan’s Will, Re (1985), 63 N.B.R.(2d) 429; 164 A.P.R. 429 (Probate Ct.).

Revival

Generally, a revoked will can be revived by re-execution and showing an intention to revive it. Evidence must be presented that shows with reasonable certainty an intention to revive the will. See MacKinlay Estate, Re (1993), 122 N.S.R.(2d) 354; 338 A.P.R. 354 (C.A.)

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This entry was last updated: February 13, 2017