Last week we discussed the doctrine of republication, which makes an older valid will operate as if it had been executed on the (later) date of republication. A codicil that refers to a prior unrevoked will is the most common example of republication.
Republication must not be confused with revival of a revoked will, which requires clear evidence of an intention to make valid a previously revoked will. (We have written before about revocation of a will, which can be effected by marriage (depending on the will), making a new will, a proper written revocation, and destruction of the will with an intention to revoke.)
Section 19(1) of the Succession Law Reform Act provides that a revoked will can be revived by: (a) another duly executed will, (b) a codicil that shows an intention to revive, or (c) re-execution of the will with the required formalities. Re-execution also requires intention, so merely signing a revoked will does not revive it.
If there is a codicil that refers to a validly revoked will, the court will look to see whether there is evidence of intention to revive. If a codicil is ambiguous, the court will consider extrinsic evidence of whether the testator had an intention to revive the will. Whether or not extrinsic evidence is admitted, the court will place itself “in the position of the testator” and consider the codicil in light of “surrounding circumstances.” In this way, the court will try to find the testator’s true intentions from the codicil (Hale v Tokelove (1850), 2 Rob Ecc 318 at 325).
Intention to revive can be a significant issue if a testator does not know that his or her will was revoked in the first place. A properly executed codicil that would republish a valid will might not be sufficient to revive a revoked will. For example, a testator might not be aware that his or her marriage revoked their previous will. If that testator makes a codicil referring to the earlier will, without understanding that the will was revoked by operation of law, then the codicil may not show the necessary intention to revive the will. If the testator dies without making a new will, his or her estate will pass on either full or partial intestacy, despite having made a will.
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Earlier this week, I blogged about criminal offences involving the theft and destruction of testamentary documents. Case law dealing with these provisions of Canada’s Criminal Code is sparse.
The 2015 British Columbia Supreme Court decision in D’Angola v. British Columbia involved multiple allegations, including an accusation that a last will and testament had been fraudulently concealed contrary to section 340 of the Criminal Code. The matter featured a mandamus application by the daughter of the deceased, who sought her sister’s prosecution for this and various other alleged violations of the Criminal Code.
The deceased, the father of the sisters, had left a will dated May 6, 2003. The will named the applicant’s sister as estate trustee and otherwise treated both sisters equally. The applicant had apparently inquired of her sister whether the deceased had a will after their father died and did not receive a clear response. Approximately five months later, the named estate trustee contacted the applicant by email and informed her of the existence of their father’s will. Eventually, the applicant was informed, by counsel for the applicant’s sister, that the sister had been named as estate trustee, was in the process of administering the estate, and that the deceased’s property located in Italy had been transferred to the two sisters and their mother in accordance with Italian succession law. The applicant later became dissatisfied with the estate trustee’s administration of the estate, stating that her conduct in that regard had been both negligent and criminal.
In summarizing the Lower Court’s decision regarding the allegation of criminal concealment of the will, Justice V. Gray noted that “even if the Sister concealed the Late Father’s will, there [was] no evidence of a fraudulent purpose on the part of the Sister, and there was nothing for the Sister to gain by concealing it.” Justice Gray declined to exercise the discretion to order a reconsideration of the issues by the Court.
Although few other decisions consider allegations of criminal theft and/or concealment of wills, this decision by the British Columbia Supreme Court suggests that, with respect to allegations of concealment under section 340 of the Criminal Code, a fraudulent purpose will be a prerequisite. Further, the Court’s considerations may include whether any benefit has been received by the accused in concealing the testamentary instrument.
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