In Morton v Christian, 2014
BCSC 1303, the British Columbia Supreme Court (the
"Court") grappled with the issue of
proper revocation of a Will. It was determined that the
destruction of a true copy of a Will does not satisfy the
requirements for revocation when the original is known to be safely
In 1989, Mr. Christian and Ms. Morton became romantically
involved. The couple married in Quebec sometime before 1991
and moved to British Columbia, where they lived together until
separating in 2009. Before leaving Quebec, Mr. Christian
executed a notarial Will naming Ms. Morton as the sole beneficiary
Mr. Christian passed away in 2011. In 1991, he had been
given three true copies of his notarial Will, none of which could
be found after his death. Ms. Morton sought a grant of
probate and a declaration that the original Will was valid.
Two cousins of Mr. Christian contested the application on
several grounds, including: that the Will had been revoked by Mr.
Christian's tearing up a true copy and depositing the remains
in the trash and that the presumption of revocation operated where
no copy of the Will could be found after death.
It was argued by the defendant family members that Mr. Christian
had torn up one of the true copies of his Will with the intention
of revoking it. The Court heard evidence to the effect that
Mr. Christian had sought legal advice regarding the creation of a
new Will, his divorce lawyer had suggested that he rip the Will in
half so as to revoke it, and that Mr. Christian had made comments
to his new partner that he had destroyed his Will by tearing it up
and throwing it in the trash.
Section 14(1)(d) of the Wills Act (now repealed)
applied to the Will because Mr. Christian died before the new
Wills, Estates and Succession Act (WESA) came
into force in British Columbia. Section 14(1)(d) imposed two
requirements to revoke a Will: there must be a physical act of
destruction and there must be proof that the will-maker's
actions were intended to revoke the Will.
Problematic for the defendants was that the original Will
remained unharmed with the Quebec notary. They relied on section
36(1)(a) of the Evidence Act for the proposition that a
copy of a Quebec notarial Will has the same force and effect as an
original and that a certified true copy can be received in evidence
in place of the original. Applied to the circumstances, the
Court concluded that the Evidence Act does not provide
that a copy of a notarial Will has the same status as an original
for the purposes of its revocation.
The presumption of revocation arises when the Will of a deceased
cannot be located after his or her death. It is then presumed
that the deceased destroyed the Will with the intention of revoking
it. The presumption can be rebutted by evidence to the
contrary. The Court determined that the presumption did not
arise in the present matter because the original notarial Will was
kept safely with a Quebec notary and this was known to the
will-maker. The way a will-maker deals with a copy of a Will,
for the sake of the presumption of revocation, cannot equate to
handling of an original. For the presumption to apply to this
case would be to equate the true copies with the original,
something the court clearly refused to do.
Section 55 of WESA makes no changes to the formal
requirements for revoking a Will. However, a defective
revocation can be cured through resort to the Court's curative
power under section 58 of WESA. Despite the
existence of section 58, individuals seeking to revoke existing
Wills are advised to comply with the formal requirements as
explicitly stated in section 55 to avoid defective revocations that
may result in uncertainty which then require the Court's
attention to cure.
Thank you to Sean Tessarolo for his assistance with this blog
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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