It’s not uncommon for someone to want to revisit their will after some time has passed. Perhaps they have a new husband or wife and want to leave something for their new partner. Maybe they’ve started a business that was not considered in an earlier will. Or they could have come into some money and are seeking to ensure it is distributed according to their wishes. Typically, when you work with a lawyer to draft a new will, you would expressly note that any previous wills have been revoked. But what happens when that step is overlooked? This was the question addressed in a recent decision from the Alberta Court of Queen’s Bench, which stands in contrast with Ontario common law.
A family divided
The issue arose after the sons and daughters of a deceased man (“the deceased”) were unable to agree on which of his testamentary documents should have been considered his last will. The wills were dated March 6, 2011, November 1, 2016, and May 14, 2017. The 2016 and 2017 wills were able to be read together and were considered by the court to be the “2017 will.”
The wills were written by the deceased and their authenticity was not in question. However, neither will revoked previous ones nor did they include language such as “my last will” or “my final will.”
The 2011 will left $85,000 to each of the deceased’s daughters and $25,000 if it remains to one of his sons. That son as well as two others were also required to pay the estate back for money they owed to the deceased. The 2017 will left $100,000 to each daughter, but has much lower debts listed for the sons. Some of the other gifts to be left to the sons were also left out of the 2017 will.
The positions of the parties
The sons argued that the 2017 will and the 2011 will can be read together as one testamentary document. They presented some evidence to support this, including stating they found the wills laying together after the deceased passed away. The daughters argued that the 2017 will should have replaced the 2011 will.
The court referenced a 2009 decision which addressed implied revocation in cases where express revocation has not been made.
“In my view implied revocation, like express revocation, derives from the intention of the testator, and therefore it is possible that even when a second will does not dispose of all of a testator’s property, the testator’s intention to revoke an earlier will in its entirety may still be inferred. The presumption against intestacy is only a presumption. It is defeated where by the terms of a later will it is clear that the testator intended to revoke a prior will. Generally, in the absence of an express revocation clause, an earlier will is revoked only to the extent that it is inconsistent with a second will. However, where a subsequent will disposes of, or shows an intention to dispose of, all the testator’s property, the Court may infer that the testator has impliedly revoked the whole of the first will. (emphasis added)”
Applying this ruling to the facts at hand, the court found,
“there is more than enough evidence before me to decide the matter without a trial – I find as a fact that the 2017 will disposes of all of the testator’s property. There is no evidence of estate assets left out of the distribution scheme of the 2017 will.”
In Ontario, the revocation of a will must be done in accordance with the Succession Law Reform Act, which says a will is revoked only by marriage, another will, a written declaration of a will to be revoked, or the destruction of the previous will. It will be interesting to see whether the developments of this law in Alberta will reach Ontario.
If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 1-844-2-DERFEL or contact us online to schedule a consultation.