- Hull & Hull LLP - https://hullandhull.com -

Dependent Relative Revocation – When a Revoked Will Isn’t Actually Revoked

The act of destroying or revoking one’s will is a fairly serious action, and not one that should be taken lightly. Without drafting a new will to take the place of the revoked one the testator will die intestate, and subject their Estate and their loved ones to the laws of intestacy of the jurisdiction in which they reside. But what if not all wills that have been revoked by the testator are actually revoked? What if you could revive a destroyed will as if nothing ever happened, and admit it to probate? Through the doctrine of dependent relative revocation you can accomplish just this.

The doctrine of dependent relative revocation can best be thought of as a sort of "conditional revocation". It is to be used when the testator only revokes or destroys their will with the intention that a new will take its place. Take for example the case of a testator who has destroyed their will as they have drafted a new one to take its place. If, for whatever reason, the new will is ineffective, the doctrine of dependent relative revocation will allow the destroyed will to be revived and take its place. The doctrine can also be employed in circumstances where a testator destroys their will incorrectly believing that a previous will they had executed will take its place (which it will not). The destroyed will can be revived, and the testator will not die intestate.

Not all revoked wills can be revived through this doctrine however. Lost wills, for one, appear to be an area in which the courts are unwilling to apply the doctrine. As I am sure you are aware, a will that can be traced to the possession of the testator, but cannot be located at the time of their death, is presumed destroyed by the testator with the intention of revoking it. As other revoked wills can be revived through the doctrine of dependent relative revocation, one could easily imagine that the argument might be attempted that a will that has been revoked as a result of it being lost should be revived in this fashion as well.

Sheen v. Sheen, a 2004 decision of the Manitoba Court of Appeal, attempted to do just this. In Sheen, it was argued that through the doctrine of dependent relative revocation a will that had been lost by the testator should be revived and admitted to probate. The court did not agree. In coming to its decision, the court states "I must say that I find it difficult to contemplate a lost will case where the principle of dependent relative revocation could be successfully invoked." This is because in order to use the doctrine it must be clear that the testator only revoked their will with the intention that a new one would take its place. In the case of a lost will, you are never certain of the circumstances surrounding the destruction of the will (assuming it ever was), and as such could never be certain that the will was only revoked on condition that a new one take its place.

Although it requires a very specific set of circumstances, the doctrine of dependent relative revocation allows a will has been revoked or destroyed to be revived and admitted to probate. So long as the revoked will was only revoked with the intention of a new document taking its place, which for whatever reason fails to materialize, the doctrine of dependant relative revocation will allow you to revive the revoked will and treat it as if nothing ever happened.

Ian Hull – Click here for more information on Ian Hull