The Doctrine of Dependent Relative Revocation
Section 15 of the Succession Law Reform Act (“SLRA”) sets out those events which may revoke a will: (a) marriage (subject to s.16), (b) another validly executed will, (c) writing a declaration with animo revocandi (intention to revoke), validly executed, or (d) destruction of the will by the testator or by another in the presence of and at the direction of the testator.
However, revocation may not always be absolute.
We recently blogged on the concepts of revival and republication of wills. Revival refers to the practice of “saving” a previously revoked will, whereas republication simply makes an older valid will operate as if it had been executed at a later date.
Another way of “saving” an ostensibly revoked will is by proving that the revocation was subject to a condition that has not been fulfilled. If a testator’s revocation is subject to a condition that is never fulfilled, the doctrine of dependent relative revocation can be invoked.
Although not expressly set out in the SLRA, a revocation by destruction or by a later will or codicil may be conditional. If the testator revokes a will with the intention of replacing it with a new will or reviving an old will, the intention to revoke is conditional on the validity of such other will. The doctrine of dependent relative revocation prevents an estate passing as an intestacy. Conditional revocation is discussed in detail in Chapter 4 of Probate Practice.
Contemporaneous intention is key: “to bring the case within the principle, it must appear that the testator considered the substitution of some valid disposition as part of the act of revocation at the time when the act was done” (Probate Practice (5th ed.) at p. 170).
Therefore, in order to establish that the principle applies to a particular case, the evidence must show that the testator considered the substitution of another valid testamentary document as part of the revocation. There must be a close connection between the revocation and substitution in order for the doctrine of dependent relative revocation to apply. It is insufficient that a testator intends to make another will at a later time yet dies before doing so.
Thank you for reading.