Dependent Relative Revocation: Succeeding on a Technicality

September 10, 2018 Garrett Horrocks Elder Law, Estate & Trust, Estate Planning, General Interest, Litigation 0 Comments

With the NFL season underway as of this past weekend, I thought this week would be an appropriate time to revisit a notion that is maybe as rare in sports as it is in contested estate matters: succeeding on a technicality.

Pursuant to section 15 of Ontario’s Succession Law Reform, a will may be revoked by, among other actions, the execution of a subsequent validly executed will or the destruction of that will by the testator, or by another individual in the presence of the testator acting on the testator’s instructions.

Consider the following scenario: a testator executes a subsequent will with the intention of revoking a prior will and, in the process, destroys the prior will.  To the dismay of the testator or his loved ones, the new will is held to be invalid.  In the ordinary course, this would lead to an intestacy, as no will would appear to govern – the prior will was expressly revoked and destroyed by the testator, and the subsequent will is not valid.

Rather than leave the testator or his loved ones in limbo, the doctrine of dependent relative revocation steps in to allow the revival of a prior will on a technicality.  This concept provides that the revocation of a prior will, as is a common term in many wills, is ultimately conditional on the validity of the subsequent will executed by the testator.  If, in the above scenario, the testator revoked and destroyed the prior will with the express intention of replacing it with a subsequent will, such revocation will be conditional on the subsequent will being valid.

Dependent relative revocation is a rare but critical technicality that prevents the absurd result of an intestacy, notwithstanding that a valid will would otherwise have governed but for subsequent execution of an invalid will.

Thanks for reading, and best of luck on your team’s campaign on the gridiron.

Garrett Horrocks

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