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Burning a Will requires intent to result in revocation

FLASH | PRO LEVEL PRIVILEGE
By Doug Carroll | April 21 2015 09:00AM
At issue

There are a number of ways that a Will may be revoked. Although the requirements vary somewhat by province, the avenues include execution of a new Will, making a written declaration of revocation, entering into marriage (in some provinces), and destruction of a current Will.In this last respect, the mere act of destruction is not sufficient on its own to achieve the revocation. The destructive act must be carried out by the testator (or by the testator’s direction) with the intent of revoking the contents. While proof of destruction may often be self-evident, proof of intent – or lack thereof – is a bit more challenging.

Sigurdson v. Sigurdson, [1935] 4 D.L.R. 529 (S.C.C.).

Where a Will is last known to be in the possession of the testator but cannot be found after the person’s death, there is a rebuttable presumption that the Will has been destroyed with the intention of revoking it.

Where destruction itself is not in issue, the determination hinges on being able to show clear and convincing evidence on a balance of probabilities that there was no intention to revoke.

Wills Act, RSNB 1973, c W-9

An example of the type of phrasing dealing with destruction appears in the New Brunswick legislation:

15. A will or part of a will is revoked only by

(d) burning, tearing or otherwise destroying it by the testator or by some person in his presence and by his direction with the intention of revoking it.

Barry et al v. Estabrooks Estate et al, 2014 NBQB 264

The sole issue in this case was whether Jarvis Estabrooks, a widower in his 80s, had the requisite intention to revoke when he burned his Will. If so, there would be an intestate distribution of $950,000 among his five surviving daughters. On the other hand, if the Will was upheld, there were some modest provisions for some of his daughters (there having been long estrangements and degrees of acrimony), with the bulk of the estate directed to his two nieces, Ruth and Roberta.

Mr. Estabrooks’ had invited his niece Ruth to be a live-in caregiver for him and his wife in 2001. Mrs. Estabrooks died shortly thereafter, and Ruth remained to assist him, right up to his death in 2012.

Sometime in late 2009 or early 2010, Mr. Estabrooks had attended at his bank and returned home with the contents of his safety deposit box. One day in April 2010 Mr. Estabrooks showed Ruth that he had separated the papers into two piles, one to be kept and one to be burned, following which she took her dog for a walk. When she returned, Mr. Estabrooks advised, “I must have burned the wrong pile.” He told her that his Will was in the burned pile but that his lawyer had another one, his apparent understanding being that an original and a copy were the same.

The evidence of the erroneous burning was supported by the testimony of a close friend to whom Mr. Estabrooks had shared the incident, repeating his assertion that he had “burnt the wrong pile.”

The judge remarked that Mr. Estabrooks enjoyed a close and warm relationship with his nieces, juxtaposed with disputes, ruptures and some permanent fall-outs he had experienced with his daughters. Past Wills were generally consistent in limiting or excluding the daughters, while benefiting the nieces, especially Ruth. Finally, the evidence showed that Mr. Estabrooks appreciated the importance and significance of a Will, and the implications of an intestacy.

The proponents of the Will had met the burden to rebut the presumption that there was any intention to revoke the Will, despite its destruction.

Practice points
  1. A finding of revocation requires that a physical act be carried out to destroy the Will, combined with the intention to revoke. Either element on its own will not suffice to achieve the revocation.
  2. If intention is proven such that the Will is revoked, the result is an intestacy. A past Will is not revived by the revocation of the subject Will.
  3. Just as testamentary capacity is required in order for a finding of a duly executed Will, a person must be found to have testamentary capacity in order to revoke one.
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