Difference between revisions of "Revocation of a Will (16:VI)"

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. This emphasizes that it is very important for a will -maker to keep safe custody of a will: if it is accidentally or otherwise lost or destroyed it may be taken to have been destroyed by the will-maker, and thereby revoked, even though this may not have been the will-maker’s wish.

Revocation does not apply where there is accidental loss or destruction, but 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 his or her will in a safe place known by the personal representative to guard against accidental loss or destruction. There is a presumption that a lost will has been destroyed and revoked, so care must be taken in storing the will.

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 v Lee Estate, 2005 BCSC 1537.