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a revoked will can only be revived by a will or codicil that shows intention to give effect to the will or part that was revoked, or by re-execution of the revoked will with the required formalities, if any.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.
Thanks for reading.
If you have school-aged children, you have undoubtedly heard of the ironclad playground rule “no take-backs”. Siblings often relish in reminding one another of the rule after a cherished possession has been passed along, much to the donor’s instant regret. In the schoolyard, children who dare to renege on a promise are subject to the righteous indignation of their peers.
In estate law, we see this scene play out when a testator enters into an agreement that provides that he or she is prevented from revoking his or her will. The testator subsequently changes the will in breach of the agreement and upon the testator’s death, it is argued that the testator is prohibited from doing so.
The question thus arises: can a testator, by agreement, effectively imbue his or her will with an irrevocable designation, contrary to the principle that a will remains revocable until death? According to Feeney’s “Canadian Law of Wills”, “A will is revocable even when it is expressed to be irrevocable and even if the testator covenants not to revoke it. In no circumstances will equity grant an injunction to restrain the testator from revoking his or her will.” Accordingly, a valid agreement, in which a testator has agreed not to revoke his or her will, cannot render a will irrevocable and does not prevent the testator from making subsequent changes. However, although the will itself remains valid, there are recourses available to the disappointed beneficiary.
If a will is revoked in breach of a contract that provides otherwise, the testator or estate may be held liable in damages or, in certain circumstances, specific performance may be granted. Alternatively, an equitable remedy such as unjust enrichment or quantum meruit may be available. It is important to bear in mind that this does not allow for a will (or a portion of a will) to be declared void. As the Ontario Court of Appeal held in Frye v Frye Estate (2008 ONCA 606), “[…] a contractual obligation to make or to refrain from revoking a will gives rise to an action for breach of contract and does not affect the validity of the will itself.”
This approach is in contrast to the one taken in some civil law jurisdictions. For instance, in Quebec, the Civil Code provides at article 706, “No person may, even in a marriage or civil union contract, except within the limits provided in article 1841, renounce his or her right to make a will, to dispose of his or her property in contemplation of death or to revoke the testamentary provisions he or she has made.” This provision is one of public order and a clause in a contract (aside from an irrevocable gift mortis causa made in a marriage contract) that attempts to do this may be deemed null and void.
Thank you for reading.
This week on Hull on Estates, Paul Trudelle and Holly LeValliant discuss beneficiary designations when a will is revoked. More specifically, they discuss a recent decision made by the Ontario Superior Court of Justice: Petch v. Kuivila, 2012 ONSC 6131 (CanLII).
Click here for more information on Holly LeValliant.
The Arkansas blogosphere is abuzz over the colourful facts of Heirs of F.D. Goza, Jr., et al. v. Estate of William E. Potts, Deceased, a decision of the Arkansas Court of Appeals. Relatives of the testator tried to propound a photocopy of his Last Will, arguing that he lacked testamentary capacity and was under insane delusions when he destroyed the original. The Appelate Court affirmed the decision of the trial judge that the deceased validly revoked his Will and died intestate.
The evidence of revocation was overwhelming: The testator wrote such phrases as “void”, "bastards" and "get nothing" over each paragraph, applied Liquid Paper over the names of the beneficiaries, and later shredded the document in front of his insurance agent. The Court held that ”the evidence clearly showed that [the testator] was an irascible, angry, suspicious, controlling, profane, and difficult man for most of his adult life; however, we cannot say that the trial court erred in refusing to find that he labored under insane delusions.”
The remarkable aspect of this case is the fact that there was a credible and disinterested witness to the shredding of the original Will. This fact certainly bolsters the presumption of destruction that exists in Ontario when the original Will can not be located on the death of a testator.
David M. Smith
David M. Smith – Click here for more information on David Smith.