The first and most common method of revoking a Will is by way of a subsequent Will. If the intent is that a testator’s Will is to deal with all of the testator’s worldwide property then language is generally included in the Will that expressly revokes all prior Wills made by the testator. It should be noted, however, that the mere fact that a subsequent Will exists does not revoke a prior Will unless the subsequent Will expressly or implicitly revokes earlier Wills or the two Wills are simply incapable of standing together.
A second common mode of revocation is by marriage. Generally, a testator’s Will is revoked upon the testator subsequently getting married but the SLRA provides two exceptions to this rule. The first exception is where a testator has executed his or her Will prior to getting married but the Will contains a declaration that the Will is being made in contemplation of marriage. The second exception is where the surviving spouse makes a written and signed election within one year of the testator’s death to honour a Will made prior to the marriage, and files such election with the office of the Estate Registrar for Ontario.
A third method of revoking a Will is by written declaration. A testator may revoke all or part of his or her Will by executing a written document (prepared in accordance with the requirements of the SLRA) declaring such intention. Generally, a declaration revoking all or part of a prior Will is included in a subsequent Will or in a codicil, but it can also be accomplished by way of a stand-alone document.
Another way to revoke a Will is via destruction of the Will. A testator can revoke his or her Will by intentionally destroying the Will himself or herself, or by having someone else destroy the Will in his or her presence and at his or her direction. It is important to note that the mere destruction of a Will is not sufficient to revoke the Will. What is critical is the testator’s intent that the Will be destroyed and thereby revoked.
A final method of revocation of a Will, at least in part, has to do with the effect of divorce. If a testator makes a valid Will and is subsequently divorced, his or her Will remains in effect – a Will is not revoked upon divorce as is generally the case upon marriage. The SLRA provides, however, that, unless a contrary intention is set out in the Will, if a testator’s marriage is terminated by divorce or nullity then the testator’s former spouse shall be deemed to have predeceased the testator. This provision will have the effect of revoking any appointment of the former spouse as executor and trustee, as well as any gifts to the spouse which are contained in the Will. It is critical to note that this deeming provision does not apply to a spouse who is separated from the testator at the time of the testator’s death. As such, it is very important that when spouses separate that they enter into a formal separation agreement which includes a provision whereby each releases his or her rights to a share in the other’s estate, as well as his or her right to act for the other as estate executor and trustee.
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