In a recent Alberta decision, the court had to decide which of two wills left by the deceased constituted his last and final will.
The deceased passed away on July 19, 2017.
The deceased left behind two wills: one from 2011 and the other from 2017. However, the 2017 will did not expressly revoke the 2011 one; it did not contain any words of revocation, nor any language such as ‘my last will’ or ‘my final will’.
A dispute arose between the deceased’s two sons and three daughters. The sons applied to court for a determination regarding which document or documents formed the deceased’s last will.
The sons argued that the 2011 and 2017 wills should be read functionally as one testamentary document. Alternatively, they argued the 2017 document should be read as a codicil to the 2011 will. Only these readings, they argued, would give effect to what they claimed were the intentions of the deceased.
The daughters argued that the deceased was not the “type” to have multiple testamentary documents and the two wills should not be read together.
The court had to determine whether the 2017 will revoked the 2011 one. Additionally, the court stated that the question required consideration of whether the two wills could be read together, or whether the 2017 will was in fact a codicil to the 2011 will.
Citing previous case law, the court set out the relevant principles of law and interpretation in such cases as follows:
“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)”
The court found that, on the evidence, the 2017 will disposed of all of the testator’s property; there was no evidence of any estate assets being left out of the distribution scheme of the 2017 will.
The court also stated that there was no reason to conclude that the deceased did not intend the 2017 will to be his last will and testament and no reason to conclude the deceased intended the 2017 will to be read together with, or as a codicil to, the 2011 will. The court stated:
“Relevant to this conclusion is the fact that both the 2011 and 2017 documents are referred to as the deceased’s will. The 2017 will does not mention the 2011 will; nothing is said for example that the 2017 document is meant only to modify or update the earlier document. Relevant too is that fact that the 2017 will is similar in form to the 2011 will – it deals with executors, identifies debts owing to the estate, disposes of the estate by way of specified gifts, then deals with the residue. All of this is consistent with the conclusion that the deceased ‘started over’ when he prepared his 2017 will.”
Additionally, the court found that the 2017 will was materially inconsistent with the 2011 will.
Though the court acknowledged that extrinsic evidence was admissible on the application, the court did not find it necessary to resort to any such evidence.
As a result, the court concluded that the 2017 will impliedly revoked the 2011 will.
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