Revocation Flashcards
Revocation can happen..
2 ways:
(1) Through operation of law
(2) Through the actions of the testator themselves
Operation of Law revocation
- Happens whether they want revoked or not
- Mainly marriage and some jurisdictions, dissolution of marriage
What happens if revoked at marriage and they don’t make a new one?
Intestacy
In which provinces does marriage not revoke a will?
Quebec, BC, Alberta
Davies v Collins
-Multiple jurisdictions
Facts: deceased domicile in NS, lived with common law wife in Trinidad for many years and died there. Deathbed marriage. Had will but hadn’t changed since first marriage.
Ratio: Court ruled after looking at the laws of conflicts that it was the domicile at the time of marriage that determined revocation—not where you get married, die, or had will drafted
Jurisdiction for rule of whether or not marriage revokes
Testators domicile (permanent residence) at the time of marriage is what determines it
What if you are beneficiary of will revoked by marriage in NB?
Can come forward even if it is intestacy and so long as doesn’t cause someone getting it under intestacy undue detriment you may still get it.
Can will stand in NB after marriage?
If not still married/ no issue of the marriage then old will can still stand
What does revocation upon marriage depend on?
Whether or not the marriage was valid
2 kinds of marriage that may be deemed invalid
(1) Void
(2) Voidable
Void marriage
Illegal from the get go, never valid.
Examples of void marriages
Senial, drunk, on drugs, can’t remember what happened, people who marry family, people already married, up until 2005 same sex
Voidable marriage
Marriages that have some kind of flaw to them and could be avoided and deemed invalid. If not avoided they remain valid.
Examples of voidable marriages
Underage marriages, unconsummated marriages
How do you void a voidable marriage?
Has to be done by one of the parties to the marriage and can only be done while they are both still alive
Who can challenge legitimacy of a marriage?
Void=Anyone with a remote financial interest of an estate
Voidable= valid unless avoided, only way to do that is one of the two parties while both still alive
What if there is no challenge to marriage?
Valid marriage and triggers these clauses
Capacity for marriage
Test for testamentary capacity much higher than that for marriage.
Banton v Banton
Facts: old man (89) married second wife (31) under suspicious circumstances (waitress from his retirement home, he was very sick, married in her apt, will left everything to her)
Ratio: striking down new will does not revive old will, while he did not have capacity for will and there was undue influence. Did have capacity to marry, revoked old one.
Infirm Persons Act in NB
Court has unique power to make, amend, and revoke wills for mentally incompetent persons
Spence v Spence
Facts: Had pre-nup saying husband couldn’t make any claims against her estate including intestacy. She did not make new will after marrying.
Ratio: Pre-nup doesn’t preclude the operation of the marriage revocation provision- intestacy still operates
What stops the operation of revocation by marriage?
S.16, wills made in contemplation of marriage do not automatically revoke
Re Coleman
Facts: man made will before married and devised gifts “to my fiancé”
Ratio: shows how court determines if made in contemplation of marriage. Court says it has to be express, has to say “this is made in contemplation of marriage”. Can have implied contemplation of marriage if meet rules.
Implied contemplation of marriage rules from Re Coleman
(1) Language you use to future spouse (have to call them fiancé or something like that, not wife)
(2) Fiance must be sufficiently identified
(3) Every disposition in the will except for appointment of an estate trustee, wardship, POA, etc. has to mention fiance (can’t just leave a few gifts)
Spousal elections
Situation where a spouse in these scenarios can elect to still take under it
Partial revocation by change in circumstances
A will is not revoked by presumption of intention to revoke it on the ground on a change of circumstance. If make will and circumstances its based on changed not automatically revoked.
In ONT circumstance change
Revoked on divorce
Will revoked by act of testator
(1) another will made in accordance with the provisions of the act
(2) A writing declaring intention to revoke governing the making of a will
(3) Burning, tearing, or otherwise destroying it by testator or someone by testators direction in presence of testator
Morrison v Owen
Facts: handwritten note saying “please follow will x and revoke all others” and signed
Ratio: holographic will revoked all others
What is not an automatic revoke?
Not all subsequent wills will be found to revoke precious wills even if they have a revocation clause
Presence/ absence of revocation clause
Not determinative of whether previous wills are actually revoked or not. Court can find revocation whether or not its there. Can be persuasive.
If no revocation clause
Will can still be deemed revoked if its clear by the new will and surrounding circumstances that the intention of the testator was to revoke previous wills
What if new will doesn’t contain an express revocation clause but doesn’t deal with all property
Depending on evidence either can be found to revoke or could be read with previous will
Generally a subsequent will revokes previous:
(1) If contains express revocation clause that is either redundant or persuasive when not clear from contents
(2) If no express revocation can go either way
(3) In rare instances a subsequent will can contain express revocation and court will still probate
Re Phelan
Facts: used pre-printed forms and put each item on a separate form, each form had express revocation
Ratio: court said obvious he didn’t understand, probated everything (RARE)
Insurance policies and other beneficiaries
A subsequent will only revokes the external designation if it does so in a manner that sufficiently identifies the policy in question in a new will
Ways to revoke external policy designation
(1) Clear and specific designation
(2) If makes new designation specific enough to provide executors with detailed instructions as to do with detailed plan
Duplicate wills
- When execute a bunch of copies just revokes previous copy.
- Photo copies are the way to go.
- Possible to make more than one valid copy but have to be very careful and say “this does not revoke”
Revoke by a writing
A will or part of a will can be revoked by a writing made in accordance with an act (codicil)
Codicil
- Baby will that supplements, changes, or adds something to an otherwise valid will but it itself is not a new will.
- Can revoke will or part thereof
What does Codicil have to be to be probated on its own?
Needs to contain sufficient instruction. Need to conform to regular validity requirements.
Re Davis
-About whether codicil revokes gift or just implied
Facts: testator was farmer left all land to D, bought new land gave to daughter then grandson through codicil, grandson pre-deceased gift failed
Ratio: no implied or express revocation from wording of either,
Physically Destroying Wills- Need two things
1) Actual destruction
2) Have to have intention to revoke (Amino Revocandi)
* these need to coincide, at the same time
What if only partial destruction?
There is a presumption that you intended to destroy it. The onus to prove otherwise is on the person attempting to probate the will.
Portions of the will are destroyed and illegible
Portions still legible can be probated. However, if the signature of the T is cut off, this revokes the will. It is the same as destroying the whole thing.
T merely draws a line through dispositions, and writes on back “all these are revoked”, and keeps the will
Will not revoked
More than one official copy, and the T destroys his official copy
Court will find that the will has been revoked by destruction, even though another official copy exists. However, if a testator destroys the photocopy of a will, this does not count as revocation.
A will destroyed by T under a mistake of fact, or law
Not revoked
A will destroyed by accident
Not revoked
Leonard v Leonard
Facts: valid original, 5 pages. First 2 pages destroyed and replaced, attested by same witnesses but contained express revocation to revoke subsequent wills.
Ratio: Court reasoned that if the first two pages were destroyed, it would have the effect of leaving the last three pages unintelligible, thus the act of the destroying the first two pages showed an intent to revoke the last three pages. Even though two new pages were attested and signed, they were incapable of making a will, because the dispositions were in the last three pages, which were revoked.
Does physical destruction of will revoke codicils?
Does not mean codicils properly executed afterwards were destroyed
Rebuttable presumption for destruction
That if the only official copy of a will can be last traced to the testators hands and cannot be found after death its presumed to be destroy (rebuttable)
Revocation can fail…
In the same reasons a will can fail (ex: undue influence)
Destruction by another
Will can be destroyed by person other than the testator but at the testator’s direction and in the testators presence
Delack, Hickey and Camp v Newton
Facts: Sister destroyed not in her presence
Ratio: not revoked
Re Krushnel Estate
Facts: testator wrote holographic will and gave to Ed talking about his death, Ed ripped up scared T would kill himself
Ratio: valid will, destruction not at direction of testator
Gill v Gill
Facts: T’s wife tore up will angrily when he was drunk, did not make a new one
Ratio: not revoked, even if he said go ahead didn’t have capacity. Cannot ratify destruction at a separate time.
