Saving Lost Wills?
Where a will can’t be found at death, there is a presumption that the will has been destroyed by the testator with the intention to revoke it, unless there is some evidence to the contrary.
Section 19 of the Succession Law Reform Act says that a will revoked in any way can only be revived by a new will, by a codicil, or by re-execution. Where a will has been lost (and therefore presumed to have been revoked), the previous will is not revived unless one of the methods in s. 19 apply.
The doctrine of dependent relative revocation may apply to save the prior will. This occurs when a testator intends a revocation by destruction to be conditional upon another will being effective (either a prior will that the testator thinks will be revived, or a subsequent one that has yet to be executed). The doctrine only applies where there is some knowledge or evidence of the testator’s intention to make the conditional revocation.
In the context of lost wills, it seems very unlikely that the prior will would be revived. The result would, in all likelihood, be an intestacy. The reason for such an outcome is that the court doesn’t know the circumstances under which the will was destroyed. So it cannot know whether the testator intended the destruction to be conditional on either the effectiveness of a new will or the revival of an old will. Even if it could be shown that the testator intended the revival of a prior will, the intention cannot be carried out because that would amount to a revival of the will otherwise than by the means set out in the statute.
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