The recent Court of Appeal of Alberta decision in Goold Estate v. Ashton, 2017 ABCA 295 (CanLII) addresses the issues of presumptions and the burden of proof surrounding lost wills and the presumption of revocation.
There, the deceased died leaving a holograph will. The holograph will revoked a prior formal will. However, the holograph will could not be found following the deceased’s death.
The court referred to the presumption of revocation: a will will be presumed to be revoked by destruction where the original cannot be located after the death of the deceased. The party relying on the presumption of revocation has the burden of proving (a) possession and control of the will by the testator; (b) continuing capacity to revoke the will; and (c) the absence of the will after death.
As to the second point, in order to rely on the presumption of revocation, the party relying on it must show that the testator had capacity to make or revoke a will. On the evidence, it was not clear as to when the will was revoked and when the testator lost capacity. There was evidence that the testator did not have capacity for a significant portion of the time during which the holograph will was under the testator’s control. The party relying on the presumption was therefore not able to discharge the burden on her to establish that the testator had capacity at the time of the revocation of the will. The Court of Appeal upheld this analysis.
Once the presumption is found to apply, the presumption can be rebutted by showing, on a balance of probabilities, that the testator did not destroy the will or intend to revoke it. The judge below found that, even if the presumption did apply, the presumption had been rebutted. The court considered:
- whether the terms of the will were reasonable;
- whether the testator continued to have a good relationship with the beneficiaries of the lost will;
- whether personal effects of the deceased were destroyed prior to the search for the lost will being carried out;
- the nature and character of the deceased in taking care of personal effects;
- whether there were any dispositions of property that support or contradict the terms of the lost will;
- statements made by the testator which confirm or contradict the terms of the lost will;
- whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store them;
- whether the testator understood the consequence of not having a will; and
- whether the testator made statements to the effect that she had a will.
The judge below found that there was sufficient evidence to establish, on a balance of probabilities, the absence of an intention to revoke the holograph will. The Court of Appeal would not interfere with these findings of fact.
For other discussions of lost wills, see What Does One Do When There’s a Lost or Defective Will? and Saving Lost Wills?
Thank you for reading. I presume that you will have a great weekend. Don’t rebut my presumption.
Pauline Palmer died on June 24, 2016 in British Columbia. She left a Will dated August 18, 1988. The Will left her estate to her cousin. The cousin predeceased Ms. Palmer. Her estate would therefore pass to her next of kin, being her 6 nieces and nephews.
However, at some point, Ms. Palmer made changes to her Will. She changed the estate trustee to a second cousin, Allen Homeniuk, and deleted the name of the cousin, inserting wording that would seem to give the estate to Allen. Some of the changes were in blue ink, and some in black ink. The changes were not signed, but were initialled.
The handwritten changes did not comply with the formal requirements for altering a Will under B.C.’s Wills, Estates and Succession Act (“WESA”). Allen moved for an order to cure the deficiencies under the curative provisions of the WESA. In particular, s. 58 allows a court to give effect to changes made that do not comply with the formal requirements. In considering the question of whether to allow the change notwithstanding noncompliance, the court will inquire into:
- whether the document in question is authentic;
- whether the document represents the deceased’s intentions;
- whether the document records a deliberate or fixed and final expression of the intentions of the deceased.
B.C. courts have noted that their curative power is inevitably and intensely fact-sensitive. The burden of proof is on a balance of probabilities. Factors relevant to finding a fixed and final expression of intention include the presence or absence of a signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document.
Allen’s application to validate the changes was opposed by some of the nephews. They argued that the changes were not a deliberate or fixed and final expression of Ms. Palmer’s intentions, but rather, “simply the musings of an aging lady”.
In its decision reported at Estate of Palmer, 2017 BCSC 1430 (CanLII), the court concluded that it could not decide the question based solely on the conflicting affidavit evidence before it. Further, the court wanted to hear evidence as to Ms. Palmer’s capacity at the time the changes were made. A trial of the issue was ordered (perhaps unfortunately, as the estate had a value of only $200,000). Further, it was ordered that all other potential beneficiaries be put on notice of the proceeding.
In Ontario, strict compliance with the requirements of executing and altering a will is required. There is no similar provision to the curative powers found in s. 58 of the WESA. For a discussion of the requirements for valid alterations to a will, see our blogs “Handwritten Alterations to an Executed Will” and “Handwritten Alterations to a Formal Will”.
Thank you for reading, and have a great long weekend.
Today I wanted to discuss a basic, but important concept when it comes to Wills: revocation. There are a number of ways in which a Will can be revoked, and it is crucial that everyone with a Will, or who will make a Will in the future, understands what those methods are, and the requirements that must be met in order to successfully revoke a Will. An incomplete understanding of revocation can lead to unintended consequences if a testator mistakenly believes either that a prior Will has been revoked, or that a prior Will that he or she believed to have been revoked, remained valid and operative.
According to section 15 of the Succession Law Reform Act, R.S.O. 1990, c. S.26,
15 A will or part of a will is revoked only by,
(a) marriage, subject to section 16;
(b) another will made in accordance with the provisions of this Part;
(c) a writing,
(i) declaring an intention to revoke, and
(ii) made in accordance with the provisions of this Part governing making of a will; or
(d) burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it.
Ontario has a strict compliance regime, meaning that the statutory requirements for actions such as executing and revoking a Will must be followed carefully, and that the courts do not have the discretion to declare a document valid that does not do so. Accordingly, if an attempted revocation of a Will does not strictly comply with the statute, it may not be valid.
For instance, one method of revoking a Will is by a writing declaring an intention to revoke and made in accordance with the requirements of the making of a Will. This means that, even if the document revoking the prior Will is not itself a Will, it must nonetheless comply with those requirements, whether it be a formal Will witnessed by two people, or a holograph Will. A testator who does not seek legal advice on revoking his or her Will may mistakenly believe that, for example, a typewritten signed statement would validly revoke a Will, when, in fact, it would not.
Destroying a Will, another method of revocation, must also be done in a particular way to satisfy the requirements of the Succession Law Reform Act. As discussed in Probate Practice (5th ed.), the two elements of destruction and intention to revoke must both be present. The destruction itself must also be done either by the testator personally, or by someone else in the testator’s presence and by his or her direction. Therefore, even if the testator directs another person to destroy his or her Will, if the testator is not present at the time of such destruction, it will be insufficient to revoke the Will in question.
Additionally, the requisite capacity to revoke a Will is the same as that required to execute a Will in the first place.
While this blog only briefly touches upon a few specific issues that may arise in relation to revoking Wills, it is clear that without a proper understanding of how to validly revoke a Will, a testator can easily stray offside of the statute, resulting in a potentially invalid revocation. As with the execution of a Will, revocation can also have significant effects on a testator’s testamentary dispositions, and it is important to seek advice from a trusted legal professional prior to taking any steps that may lead to unintended, and unfortunate, consequences.
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Marriage is commonly understood to have the effect of revoking a will. The public policy rationale is simple: legal obligations are imposed on spouses to provide support to one another. A will predating the marriage that does not reflect this obligation would force the surviving spouse to have recourse to statutory remedies. Better to simply start from scratch from the commencement of the marriage and make a will that (presumably and hopefully) adequately provides for the surviving spouse.
The Common Exception to Revocation by Marriage
Marriage does not, however, always have the effect of revoking a will. There is an exception which gives a nod to the possibility that the testator who is about to marry may have the foresight to make an appropriate will “in contemplation of marriage.” Accordingly, pursuant to s. 16(a) of the Succession Law Reform Act, if there is a declaration contained in the will to such effect, it will not be revoked and will remain in force on the death of the testator.
The Lesser-Known Exception to Revocation by Marriage
Just as the testator has the power to avoid revocation by marriage by advance planning, the surviving spouse is empowered by the statute as well. Although not so well known, Section 16(b) of the Succession Law Reform Act allows the surviving spouse to elect “to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario.”
Presumably, it is a somewhat rare circumstance for a surviving spouse to elect under s. 6(b). In most circumstances, a Will benefiting the surviving married spouse that is made in advance of the marriage would contain the “in contemplation of marriage” declaration, thereby negating the need to elect. However, by addressing the circumstance of a Will that does not include the declaration yet still benefits the surviving spouse to his or her satisfaction, unnecessary litigation and recourse to statutory remedies is avoided.
For the uninformed, s. 6(b) of the SLRA can result in unintended consequences. Consider a situation in which a testator, incorrectly assuming that his Will which solely benefits the woman who became his wife was automatically revoked by marriage, separates but does not divorce. He assumes he will die intestate, leaving his estate to his children from a prior marriage. However, on his death, his separated but not divorced wife is empowered under the SLRA to choose to benefit under a Will which the testator did not realize was open to be relieved from revocation by the surviving wife’s right of election.
As is usually the case, unintended consequences can be avoided by knowledge and information. In the context of a matrimonial dispute, all possible ramifications of an unexpected death should be considered.
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Usually a Will challenge takes place after the initial application for probate. Where probate has already issued, a Will challenge may still commence (within the limitations period). A first step is “calling in” the Certificate of Appointment through a motion under sub-rule 75.05 of the Rules of Civil Procedure or an application under sub-rule 75.04 [the former deals squarely with Will challenges, the latter speaks to other considerations].
A recent case before the Trial Division of the Supreme Court of Newfoundland and Labrador explores the criteria for revocation of the already-issued Certificate. In Coombs v. Walsh (Estate), 2017 NLTD(G) 83, Justice Goulding reviewed the jurisprudence on point extensively and held as follows:
“…I am satisfied that the standard is whether there is a genuine issue to be tried and not the higher standard of whether there is a reasonable prospect of success. However, the threshold is not so low that mere suggestion or conjecture or evidence on peripheral points will suffice. As stated, there must be probative evidence which is material to the issues raised which has not been fully answered with uncontradicted evidence by the propounder of the Will” [emphasis added.]
Hence, there is both a legal and evidential burden that must be met. At the end of the day, the Court must balance the interest in maintaining the efficient administration of the Estate with considerations that would not allow revocation of the existing Certificate of Appointment to be used merely as a tool of obstruction.
The discussion in Walsh Estate is an easy and interesting read and I happily commend it to you for review.
Have a nice weekend everyone!
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
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.
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!
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.
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Earlier this week, we discussed the effect a well drafted separation agreement has on an individual’s estate plan. But what effect does a divorce have?
In most instances, going through a divorce can be stressful and contentious. As a result, necessary changes to an individual’s estate plan may be overlooked. Fortunately, section 17(2) of the Succession Law Reform Act provides divorced couples with some piece of mind:
“Except when a contrary intention appears by the will, where, after the testator makes a will, his or her marriage is terminated by a judgment absolute of divorce or is declared a nullity,
(a) a devise or bequest of a beneficial interest in property to his or her former spouse;
(b) an appointment of his or her former spouse as executor or trustee; and
(c) the conferring of a general or special power of appointment on his or her former spouse,
are revoked and the will shall be construed as if the former spouse had predeceased the testator.”
While the SLRA provides a divorced spouse’s estate with some protection against honouring unintended gifts after divorce, the termination of a marriage is nonetheless a good time for divorced persons to review their estate plans, especially as joint bank accounts and beneficiary designations do not have the benefit of the remedial provisions of the aforementioned statute.
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A recent decision of the Saskatchewan Court of Appeal paraphrases an interesting provision (s.17) of the Saskatchewan Wills Act: “Once a testator cohabits continuously for two years and then makes a will, the law presumes the testator has turned his or her mind to the question of disentitling one’s spouse and, if the parties subsequently marry, the marriage does not revoke the prior will.”
In Santiago v Trottier 2016 SKCA 113, the daughter of the deceased (Dawn) appealed the lower court’s finding that her father’s will was revoked by his marriage. Roy Trottier died in 2012, survived by his wife, Paulette, and his two children from a previous relationship. In 1998, Roy and Paulette began to cohabit. Around the same time, Roy made a will in which his two children were appointed executors and primary beneficiaries, with some specific bequests to Paulette. Roy and Paulette married in 2012, after Roy was diagnosed with cancer. Roy died shortly thereafter.
Section 17(3) reads as follows: “[revocation by marriage] does not apply where the testator marries a person with whom he or she is cohabiting and has cohabited in a spousal relationship continuously for two years.”
Dawn’s argument was not without merit. Her submission was that, on a plain reading of the statute, Paulette and Roy had married each other after having cohabited in a spousal relationship continuously for many years. As such, Dawn submitted that subsection 17(3) should operate to prevent the 1998 will from being revoked by the marriage.
The Court of Appeal upheld the decision of the lower court, which found that the marriage did in fact revoke the 1998 will. The decision is complicated by the fact that the cohabitation provision was proclaimed in force in 2001, after the 1998 will was made. Both the lower court and the appeal court found that the making of the 1998 will prior to the spousal relationship was a key factor. Essentially, the lower court and appeal court concluded that the presumed intention of common law and married spouses to contemplate their obligations to one another would be defeated if Dawn’s argument prevailed. To quote from the appeal decision: “…the Chambers judge settled upon an interpretation that best conforms to achieving equality between married and common law couples.”
It is important to review a will or estates plan periodically, particularly after major life events, such as marriage, cohabitation, or the birth of a child. We have previously blogged on the effect of marriage on a will and estate planning after a second marriage.
Thank you for reading.
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.
Thank you for reading.
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.
Thank-you for reading.