Revocation of a Will (16:VI)

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 V: 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. 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.

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 he or she lacks capacity to form the requisite intention.

Revocation does not apply where there is accidental loss or destruction. 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, therefore, 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.

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, wishes to appoint a former spouse as executor, or wishes to 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 section 198 [of the Family Law Act], as happened here.” In summary, this means that Family Law Act claims can continue even past death as long as the claimant brings suit within two years.