Answers to Questions We Never Ask: Revocation by Destruction

August 20, 2009 Hull & Hull LLP Estate & Trust Tags: 0 Comments

Q:  How is a will actually revoked, other than by marriage or making a new will?

A:   See section 15 of Ontario’s Succession Law Reform Act ("SLRA"), which enumerates revocation events (marriage depending on the will, making a new will, a proper written revocation, and destruction of the will).  See also the later provisions in the SLRA, especially ss. 16-19.

Revocation by destruction (s. 15(d) of the SLRA) is perhaps the most legally interesting revocation technique.  To revoke by destruction, the testator must have the intention to revoke the will (animo revocandi), and perform an act of destruction qualifying under section 15(d).  Both requirements must be present: acts without intent are not sufficient, nor are intentions without action (Cheese v. Lovejoy (1877), 2 P.D. 251 at 253).  The testator must not be of unsound mind (which extends to scenarios other than just general lack of testamentary capacity, so for instance, a very drunk testator might not have requisite capacity to revoke the will). 

How is the act requirement met?  What amounts to a "burning, tearing or otherwise destroying" of the will?  The caselaw is rich in unique fact scenarios on this issue, but clearly the entire will need not be comprehensively annihilated.  For instance, in Hobbs v. Knight (1838), 1 Curt 768 at 780-781, a signature that was obliterated so that it could no longer be read would amount to a revocation of the will, because the signature is an essential part of the will.   

The caselaw, much of which predates section 15 and the related sections in the SLRA (and the entire SLRA), is still very much relevant.  For a detailed discussion of revocation of wills in light of the SLRA, see Chapter 4 of  MacDonell, Sheard and Hull on Probate Practice, 4th ed. (Carswell: Toronto, 1996), edited by Ian Hull and Rodney Hull.

Have a great day,

Chris Graham

 

Chris M.B. Graham – Click here for more information on Chris Graham.

 

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