Tag: 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.
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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.
Thanks for reading,