In the recent decision of Fitzpatrick v Ollenberger, the Saskatchewan Court of Appeal considered intentional revocation of a will and the presumption of destruction animo revocandi.


The testator, Bobby, was a farmer who was largely estranged from his family. On the other hand, he had a close family-like relationship with his neighbours, the Fitzpatricks. In August 2006, Bobby executed a will, leaving his estate to various members of the Fitzpatrick family. The original will remained at his lawyer’s office and Bobby kept a copy.

In August 2007, Bobby wrote a letter to his lawyer, which included a handwritten note:

Will & power of attorney to be cancelled

Thank You!

Robert McGlynn

The lawyer responded to Bobby’s letter, advising him he would need to take further steps to revoke his will and power of attorney and asking whether he would like to receive the original documents. Bobby did not immediately respond to his lawyer’s letter. The lawyer sent another letter to Bobby, asking whether he would like to receive the original will and power of attorney. Bobby then sent back an undated handwritten note:

Scrap the whole thing, all this has been changed as of a while back.

Thank you, much.

Robert McGlynn

The lawyer remained uncertain about his instructions and sent Bobby several further letters asking if he would like to receive the original will and power of attorney in order to destroy them.

In December 2008, Bobby returned a handwritten note to his lawyer, stating:

That will be fine if would return the documents to me.

Thank you very much!

Robert McGlynn

The lawyer then returned the will and power of attorney to Bobby in January 2009 by regular mail. Bobby died in October 2013. His original will could not be found after his death.

Revocation by holograph instrument

Section 16 of Saskatchewan’s Wills Act states:

16 No will or any part of a will is revoked other than:


(c) by some writing declaring an intention to revoke the will or part of the will and executed in accordance with this Act; or

(d) by burning, tearing or otherwise destroying the will or part of the will by the testator, or by some person in his or her presence and by his or her direction, with the intention of revoking it.

The Court noted that there is nothing in the act that suggests a holographic testamentary instrument could not effectively revoke a formally executed document. The Court therefore considered whether the notes to his lawyer constituted a holograph instrument.

Unlike Ontario, Saskatchewan’s legislation has a substantial compliance provision, which gives the court discretion to order that a written document embodying testamentary intention or intention to revoke a will is effective, notwithstanding that it was not executed in compliance with the formal requirements of the Wills Act. The Court also emphasized that under Saskatchewan law: “the intention of the testator, not the form of the testamentary document, is paramount. A holograph instrument may dictate the disposition of the testator’s property if it manifests the deliberate and final intentions of the testator and the words used convey this intention with sufficient clarity to allow the court to interpret it with some certainty.” The Court of Appeal upheld the trial judge’s factual finding that the handwritten notes displayed a final and deliberate intention to revoke his will.

Presumption of destruction

As in Ontario, there is a presumption that when a will was last in the custody of the testator and cannot be found after his or her death, the testator destroyed the will with intention of destroying it. This presumption may be rebutted by the facts on a balance of probabilities. The Court of Appeal upheld the trial judge’s finding that the will was last in Bobby’s possession and there was no evidence to rebut the presumption of destruction.

Thank you for reading.

Suzana Popovic-Montag

Other articles you might enjoy:

Revocation of Wills: White Out of This World

Answers to Questions We Never Ask: Revocation by Destruction

Revocation by Marriage in Saskatchewan