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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)). | 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 | 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 == | == 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. | 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 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. | |||
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. | |||
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. | 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. |
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