Revocation of a Will (16:VI)

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This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 22, 2024.

Revocation of wills is governed by sections 55 and 55.1 of WESA. These sections outline the only ways in which a will may be revoked. Section 56(2) of WESA states that if a will-maker

  • gifts,
  • appoints as an executor, or
  • confers power to someone who ceases to be their spouse under section 2(2) before the will-maker’s death,
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
16. Wills and Estate Administration
 · I. Introduction

 · II. Governing Legislation & Resources
 · III. Making and Executing a Will
 · IV. Will Mistakes and Alterations
 · V. Court's Power
 · VI. Revocation
 · VII. Wills Variation Claims
 · VIII. Intestacy
 · IX. Property
 · X. Estate Administration
 · XI. Duties of Personal Representative
 · XII. Tax: RRSP & RRIF & TFSA
 · XIII. LSLAP Program Information
 · Appendix A: Will Instructions Questionnaire
 · Appendix B: Will Drafting and Execution Checklist

 · Appendix C: Glossary
v • d • e



only that specific gift, appointment, or conferment is revoked, not the entire will. The gift to the ex-spouse must be distributed as if they died before the will-maker. The application of section 56 of WESA is subject to any contrary intention in the will. Please note that the operation of section 56(2) is not affected by a subsequent reconciliation of the will-maker and the spouse.


A. By Subsequent Writing

A subsequent instrument in writing that

  • is not a subsequent will but
  • is in compliance with the provisions of WESA (e.g., signed by two witnesses, etc.)

may have the effect of revoking the will (WESA, s 55(1)(b)).

Where a will is revoked in this way, a wills notice should be filed with the Department of Vital Statistics to record the revocation of the will (see Section III.G: Filing a Wills Notice).


B. By Destruction or Loss

A will may be revoked by destruction, per section 55(1)(c) of WESA. There must be some physical act of destruction: “burning, tearing, or destruction of it in some other manner by the will-maker.” Though copies need not be destroyed, it would be safer to do so to ensure revocation. If a will is in the will-maker’s custody and is found destroyed, or if a lost will was last known to be in the will-maker’s custody, it will be presumed that the will-maker destroyed it. There is a presumption that a lost will has been destroyed and revoked, therefore, care must be taken in storing the will.

To prevent subsequent litigation, if a will is accidentally lost or destroyed, the will-maker should make a new one even though a copy of the lost or destroyed one survives. The will-maker should maintain clear custody of their will in a safe place known by the personal representative to guard against accidental loss or destruction.

Furthermore, for a will-maker to revoke a will by destruction, the will-maker must have the intention of revoking the will. Though there is a presumption that a will-maker who destroys a will does so with the intention of revoking it, this does not apply where they lack capacity to form the requisite intention.

Also, there is the question of whether the intention to revoke the will was absolute or conditional. If it was absolute, revocation is complete. However, if the intent depended on the condition of reviving an old will or writing a new one and the condition or contingency has not been satisfied, the revocation is ineffective. This is known as the doctrine of dependent relative revocation: see Jung, Re Estate of Horace Lee, 2005 BCSC 1537.

NOTE ON ELECTRONIC WILLS: Section 55.1 outlines how to revoke an electronic will. To revoke an electronic will, the will-maker or a person in the presence of the will-maker and by the will-maker’s direction:

  • can delete one or more electronic versions of the will or of part of the will with the intention of revoking it, or
  • may burn, tear or destroy all or part of a paper copy of the will in some manner, in the presence of a witness, with the intention of revoking all or part of the will.

An inadvertent deletion of one or more electronic versions of a will is not evidence of an intention to revoke the will, so what is important is the intention of the will-maker; see Section III.D.2: Electronic Wills, for more information.


C. By Subsequent Will

A will may be revoked by another will made in accordance with section 55(1)(a) of WESA. Nevertheless, it is common practice to clearly provide for such by the inclusion of a revocation clause at the beginning of a will.

Notwithstanding an express revocation clause, a second will does not necessarily absolutely revoke a former will. There may be partial revocation only; where the second will does not completely dispose of the estate, both documents may be admitted to probate. The will-maker should, therefore, ensure that the second will disposes of the entire estate, which may be accomplished through the use of an effective residuary clause.


D. Effect of Marriage on Will Revocation

Under WESA, a subsequent marriage will no longer revoke a prior will.


E. Effect of Divorce, Separation, and Change in Circumstances on Will Revocation

Neither marriage nor divorce of the will-maker will revoke a will. However, a change in circumstances may lead to an individual no longer being considered a spouse. This will bar the former spouse from a claim to vary a will.

Additionally, if a will-maker wishes to

  • leave anything in a will to a former spouse,
  • appoint a former spouse as executor, or
  • confer any powers of appointment on a former spouse,

the will-maker should explicitly state that this is being done contrary to section 56(2) of WESA.


F. Effect of Family Law Act

According to Howland Estate v. Sikora, 2015 BCSC 2248: “The death of the claimant, prior to the coming into force of the [Family Law Act], does not override the respondent's right to commence an action against the claimant's estate so long as it occurs within the two year period contemplated in s. 198 [of the Family Law Act], as happened here.” In summary, this means that the Family Law Act claims can continue even past death as long as the claimant brings a suit within two years.


v • d • e
 
Introduction
 
Chapters 1-7
Criminal Law  · Youth Justice  · Family Law  · Victims  · Public Complaints · Human Rights  · Workers Compensation
Chapter One:
Criminal Law
Chapter Two:
Youth Justice
Chapter Three:
Family Law
Chapter Four:
Victims
Chapter Five:
Public Complaints
Chapter Six:
Human Rights
Chapter Seven:
Workers' Compensation
I. Introduction · II. Governing Legislation, Policy & Guidelines · III. Introduction to Compensation Claims for Injured Workers · IV. LSLAP's Role at the Initial Decision Level · V. Limitation Periods and Timing of Decisions · VI. Making a Claim · VII. The Claim Acceptance Process · VIII. Worker Status · IX. Disability and Causation · X. Time Limits and Procedures · XI. Claim Benefits · XII. Appeals · XIII. Health and Safety Regulations · XIV. Assessments of Employers · XV. The WCB Fair Practices Office · Appendix A: Abbreviations · Appendix B: List of Cases · Appendix C: Referrals · Appendix D: Resources · Appendix E: Small Claims Flow Chart · Appendix F: Checklist for Interviews · Appendix G: Checklist for Appeals · Appendix H: Sample Authorization Form
 
Chapters 8-14
Employment Insurance  · Employment Law  · Creditors and Debtors  · Consumer Protection  · Auto Insurance (ICBC)  · Motor Vehicle Law  · Mental Health Law
Chapter Eight:
Employment Insurance
Chapter Nine:
Employment Law
Chapter Ten:
Creditors' Remedies and Debtors' Assistance
Chapter Eleven:
Consumer Protection
Chapter Twelve:
Auto Insurance (ICBC)
Chapter Thirteen:
Motor Vehicle Law
Chapter Fourteen:
Mental Health Law
 
Chapters 15-23
Adult Guardianship and Substitute Decision-Making · Wills and Estates  · Citizenship  · Immigration  · Landlord and Tenant Rights  · Small Claims  · Welfare Law  · Strata Law  · Referrals
Chapter Fifteen:
Adult Guardianship and Substitute Decision-Making
Chapter Sixteen:
Wills and Estate Administration
Chapter Seventeen:
Citizenship
Chapter Eighteen:
Immigration Law
Chapter Nineteen:
Landlord and Tenant Law
Chapter Twenty:
Small Claims and the CRT
I. Introduction · II. Governing Legislation and Resources · III. Do You Have a Claim? · IV. Choosing the Proper Forum · V. Starting a Claim · VI. Responding to a Claim · VII. Default Order · VIII. How a Claim Proceeds · IX. Pre-Trial Applications · X. Mediation · XI. Settlement Conferences · XII. Trial/Pre-Trial Conferences · XIII. Trial Preparation · XIV. Trials · XV. Costs and Penalties · XVI. Appeals · XVII. Enforcement of a Judgement · XVIII. LSLAP Program Information · Appendix A: Registries · Appendix B: Demand Letter · Appendix C: Notice of Claim · Appendix D: Reply to Claim · Appendix E: Glossary · Appendix F: Limitation Periods · Appendix G: Causes of Action · Appendix H: Court Fees · Appendix I: Tribunal Fees · Appendix J: Settlement Conference · Appendix K: Payment Hearing · Appendix L: Appeal
Chapter Twenty One:
Welfare Law
Chapter Twenty Two:
Strata Law
Chapter Twenty Three:
Referrals
© Copyright 2024, The Greater Vancouver Law Students' Legal Advice Society.


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