If a document attempting to revoke a Will is defective in some way, the Court can “cure” this defect to give legal effect
After the introduction of WESA, the law relating to the revocation of wills in British Columbia was dramatically altered. These changes were reflected in Section 55 of WESA which provides:
55 (1) A will or part of a will is revoked only in one or more of the following circumstances:
(a) by another will made by the will-maker in accordance with this Act;
(b) by a written declaration of the will-maker that revokes all or part of a will made in accordance with section 37;
(c) by the will-maker, or a person in the presence of the will-maker and by the will-maker’s direction, burning, tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it;
(d) by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker’s direction, if the court determines under section 58 that
(i) the consequence of the act of the will-maker or the other person is apparent on the face of the will, and
(ii) the act was done with the intent of the will-maker to revoke the will in whole or in part.
(2) A will is not revoked in whole or in part by presuming an intention to revoke it because of a change in circumstances.
Prior to WESA, the revocation of a prior will could be satisfied in a number of scenarios:
- A written declaration by a will-maker declaring an intention to revoke a Will that was duly executed in the same prescribed method as a Will;
- Execution of a subsequent Will (this usually includes a clause revoking previous Wills); or
- Burning or otherwise destroying the original Will by the will-maker or someone in the presence of them and under their direction.
The execution of a subsequent Will was by far the most common method of revoking a will. A properly executed subsequent Will containing a clear revocation clause will produce a heavy onus on any attackers of the Will arguing that the clause was not intended to be effective. As far as destruction of a Will, there must be an act of destruction and an intention to destroy the Will. For example, partial tearing of the Will which leaves words decipherable does not necessarily show the requisite intention to revoke a Will. The case of Re Shafner (l956), 2 DLR (2d) 593 found that there must be sufficient destruction of a Will with intent to revoke to such an extent that the entirety of the Will is destroyed for effective revocation.
The Presumption of Destruction
An interesting scenario arises in an estate dispute where the original Will cannot be located, and probate is sought with a copy of the Will. The question becomes whether the original Will can be considered destroyed or if it is merely lost. If the original Will cannot be produced after the will-maker passes away, and the executor fails to prove that it was merely lost and not destroyed, there is a rebuttable common-law presumption that arises which considers the Will destroyed with the intention to revoke it: Kumar v Kumari 1993 CanLII 1033. The case of Sigurdson v Sigurdson (1935) 4 DLR 529 determined that the evidence necessary to rebut this presumption must be convincing enough to satisfy the court that the original Will had in fact only been lost, and not destroyed with the intention of revoking it.
The questions considered by the Court to determine if this presumption applies and whether it has been rebutted were discussed in Haider v Kalugin 2008 BCSC 930:
- Were the terms in the copy of the Will reasonable;
- How did the deceased take care of his/her personal effects;
- Did the deceased make any statements to confirm the terms of the copy of the Will;
- Did the deceased understand the consequences of having a Will vs. dying intestate;
- Were the deceased’s papers stored carefully or chaotically; and
- Did the deceased have good relations with the beneficiaries named in the copy of the Will.
Perhaps the foremost change in the revocation of Wills that was implemented through WESA was that a will-maker’s marriage, after executing a Will, would no longer revoke that Will. Prior to this new legislation, revocation of a Will due to marriage was a mostly unknown legal provision and had created much hardship for estate litigation in British Columbia.
Another significant change brought about by WESA is the curative provisions found in Section 58. Essentially, if a document attempting to revoke a Will is defective in some way, the Court can “cure” this defect to give legal effect to the intention to revoke if it is satisfied that the will-maker intended to revoke the Will. This section allows the Court to liberally give effect to a will-makers intention when they fail to revoke a Will in the strict manner that the common law previously required.
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