Revocation of Wills: An Overview

August 21, 2017 Rebecca Rauws Estate Planning, Wills Tags: , , , , , , , , , , , 0 Comments

Today I wanted to discuss a basic, but important concept when it comes to Wills: revocation. There are a number of ways in which a Will can be revoked, and it is crucial that everyone with a Will, or who will make a Will in the future, understands what those methods are, and the requirements that must be met in order to successfully revoke a Will. An incomplete understanding of revocation can lead to unintended consequences if a testator mistakenly believes either that a prior Will has been revoked, or that a prior Will that he or she believed to have been revoked, remained valid and operative.

According to section 15 of the Succession Law Reform Act, R.S.O. 1990, c. S.26,

15 A will or part of a will is revoked only by,
(a) marriage, subject to section 16;
(b) another will made in accordance with the provisions of this Part;
(c) a writing,
(i) declaring an intention to revoke, and
(ii) made in accordance with the provisions of this Part governing making of a will; or
(d) burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it.

Ontario has a strict compliance regime, meaning that the statutory requirements for actions such as executing and revoking a Will must be followed carefully, and that the courts do not have the discretion to declare a document valid that does not do so. Accordingly, if an attempted revocation of a Will does not strictly comply with the statute, it may not be valid.

For instance, one method of revoking a Will is by a writing declaring an intention to revoke and made in accordance with the requirements of the making of a Will. This means that, even if the document revoking the prior Will is not itself a Will, it must nonetheless comply with those requirements, whether it be a formal Will witnessed by two people, or a holograph Will. A testator who does not seek legal advice on revoking his or her Will may mistakenly believe that, for example, a typewritten signed statement would validly revoke a Will, when, in fact, it would not.

Destroying a Will, another method of revocation, must also be done in a particular way to satisfy the requirements of the Succession Law Reform Act. As discussed in Probate Practice (5th ed.), the two elements of destruction and intention to revoke must both be present. The destruction itself must also be done either by the testator personally, or by someone else in the testator’s presence and by his or her direction. Therefore, even if the testator directs another person to destroy his or her Will, if the testator is not present at the time of such destruction, it will be insufficient to revoke the Will in question.

Additionally, the requisite capacity to revoke a Will is the same as that required to execute a Will in the first place.

While this blog only briefly touches upon a few specific issues that may arise in relation to revoking Wills, it is clear that without a proper understanding of how to validly revoke a Will, a testator can easily stray offside of the statute, resulting in a potentially invalid revocation. As with the execution of a Will, revocation can also have significant effects on a testator’s testamentary dispositions, and it is important to seek advice from a trusted legal professional prior to taking any steps that may lead to unintended, and unfortunate, consequences.

Thanks for reading,

Rebecca Rauws

 

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