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Difference between revisions of "Revocation of a Will (16:VI)"
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Revocation of a Will (16:VI) (view source)
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{{REVIEWED LSLAP | date= August | {{REVIEWED LSLAP | date= August 9, 2021}} | ||
{{LSLAP Manual TOC|expanded = wills}} | {{LSLAP Manual TOC|expanded = wills}} | ||
== A. By Subsequent Writing == | == 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)). | 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 III.G: Filing a Wills Notice'''). | 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'''). | ||
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== 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. '''There is a presumption that a lost will has been destroyed and revoked, therefore, care must be taken in storing the will'''. | 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 their will in a safe place known by the personal representative to guard against 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 their will in a safe place known by the personal representative to guard against accidental loss or destruction. | ||
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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. | ||
'''NOTE:''' If the amendments in ''Bill 21'' are brought into force resulting in the validity of electronic wills, there will be revocation methods that are specific to electronic wills. ''Bill 21'' will introduce section 55.1 to ''WESA'', which outlines the ways by which an electronic will may be revoked. Note that this amendment has not yet come into effect; see '''Section III.D.2: Electronic Wills''', for more information. | |||
== C. By Subsequent Will == | == C. By Subsequent Will == | ||
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== F. Effect of Family Law Act == | == 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 s. 198 [of the ''Family Law Act''], as happened here.” In summary, this means that the ''Family Law Act'' claims can continue even past death as long as the claimant brings a suit within two years. | According to ''[https://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc2248/2015bcsc2248.html?autocompleteStr=Howland%20Estate%20v.%20Sikora%2C%202015%20BCSC%20&autocompletePos=1 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 s. 198 [of the ''Family Law Act''], as happened here.” In summary, this means that the ''Family Law Act'' claims can continue even past death as long as the claimant brings a suit within two years. | ||
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