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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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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The nature of a will is that it is revocable, meaning that testators can change their mind, cause their will to no longer be in effect, and make a new will at any time. However, just as there are requirements for executing a will, there are specific rules in place that govern how a will may be revoked.
In Ontario, a will can only be revoked in certain ways. Under section 15 of the Succession Law Reform Act, RSO 1990, c S.26 (SLRA), a will or part of a will is revoked only by (a) marriage; (b) another will; (c) a writing declaring an intention to revoke, and made in accordance with the requirements of making a will; or (d) burning, tearing or otherwise destroying the will by the testator with the intention of revoking it. Accordingly, testators cannot simply decide that they no longer wish their will to govern their estate without any further action. They must take the step of executing a later will, destroying the will, or putting it in writing in the correct format that they wish to revoke. Many people are not aware that marriage revokes a will, so clients should always be advised of this in order to prevent any possible inadvertent revocation.
However, revocation of a will may not be the final word. Revival and republication exist to bring a revoked will back into effect. Revival is the restoring of a revoked will. Pursuant to section 19 of the SLRA, a revoked will can only be revived by a will or codicil that shows intention to give effect to the will or part that was revoked, or by re-execution of the revoked will with the required formalities, if any. The intention to revive a revoked will must appear on the face of the instrument purporting to revive it, and simply describing a later codicil as being a codicil to an existing will is not sufficient. If a will has been destroyed, it can only be revived by re-execution of a draft or copy or by a codicil referring to a draft or copy.
As opposed to revival, which restores a revoked will, republication, on the other hand, confirms a valid will. Republication occurs when a testator re-executes a will for the express purpose of republishing it or by making a codicil to the will. Essentially, republishing a will shifts the date of the will, so it is as if the testator had made a new will, with the exact same dispositions, at a later date. Republication must be in the form of a codicil to an existing will, or a document that makes specific reference to the will being republished as an existing testamentary document.
These may seem like simple concepts, but it is important to keep the basic rules in mind, as well as the sources of such rules, in order to properly advise clients and pre-empt easily avoidable issues as much as possible.
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The concept of reviving a revoked will seems clear enough. But what is the difference between a revival and a republication, and why does it matter?
Revival means reactivating a revoked will. Note that section 19(1) of Ontario’s Succession Law Reform Act requires a revival to be in accordance with the provisions of Part I of the Act. So an oral declaration that a revoked will is valid does not suffice. A destroyed will cannot be revived, unless the reviving instrument contains a copy or the terms. On the other hand, at Common Law, a codicil referencing an existing will "republishes" that will, furnishing evidence of the testator’s considering his will as then existing. And because the Wills Act, 1837 did not abolish the doctrine of republication, the principle still operates. Both revived and republished wills are deemed executed on the revival or republication date.
An attempt to revive a will that was never actually revoked may have the result of republishing that will at the time of the attempted revival. However, attempting to republish a revoked will not revive a revoked will, unless the acts of republication also satisfy the requirements of a revival (which include the form requirements of the Succession Law Reform Act. Specific uses of the doctrine of republication are discussed in detail in Macdonell, Sheard and Hull on Probate Practice, 4th ed., Rodney Hull, Q.C. and Ian M. Hull (Carswell: Toronto, 1996), pp. 116-119.
Have a good day,
Christopher M.B. Graham – Click here for more information on Chris Graham.