Revoking Wills Intentionally And Inadvertently
It is, of course, very important for people to have both a will and a comprehensive estate plan. This protects you, your family and your loved ones. An estate plan consists of a number of documents. For example, at a minimum, they include a will, an enduring power of attorney and a personal directive (or living will). However, sometimes dramatic changes occur in life. Occasionally, these changes lead to people revoking wills in Alberta. Revoking wills include serious consequences. Please keep reading to learn more about how to revoke a will, the effect of doing so as well as what steps people need to take afterwards. The Wills and Succession Act governs this area of law in Alberta. If you have further questions, please reach out to our wills and estates lawyers at Kahane Law Office. With offices in both Calgary and Edmonton, we help clients province wide.
Why Revoking Wills Occurs
Firstly, it is important to understand the situations where revoking wills occurs. The most frequent reason involves the breakdown of a close familial relationship. For example, people often take this drastic step when a sudden breakdown in a marriage occurs. In addition, in some instances, a child defrauds or hurts a parent and the parent wishes to cut that child out of their will. However, in still many instances, the revoking of a will occurs simply by mistake. This untended revocation typically occurs because people lack familiarity with the law as it relates to deemed revocations. (This is covered in the section just below.)
How To Revoke A Will
Next, several methods of revoking wills exist in Alberta. As described below, some of these methods easily occur unintentionally. Whether intentional, or unintentional, the consequences stemming from a person taking this step remain the same. For example, in Alberta some methods for revoking a will include:
In Writing In A New Will
Almost all wills include a first paragraph where the person “hereby revokes any existing will”. This language ensures the avoidance of situations where two valid wills exist at the same time. Conflicting wills often lead to disputes and / or litigation. This language, although intentional, may lead to the unintentional revoking of wills. For example, if someone buys real estate in another country, and they create a will in that country. If that will specifically only deal with the real estate in that country, but still revokes any prior wills, then no will exists, other for that real estate. In other words, this means that your other assets fall into an intestacy. At times, multiple wills in multiple jurisdictions is a good idea. However, using extreme caution in these situations is prudent.
In Writing By A Codicil
Next, another method of revoking wills in Alberta includes the use of a codicil. A codicil is a document used to make changes to a will. In these situations, the codicil simply states that you wish to revoke your will.
Revoking Wills By Destroying Your Existing Will
If you intentionally destroy your will, it is deemed to be revoked. This is one reason why estate lawyers discourage people from having more than one originally signed copy of their will. How you destroy your will is irrelevant. Tear it up, burn it, or put it into a shredder. All methods remain equally effective. If a person specifically directs another person to destroy their will, this action has the same consequences as if they destroyed it themselves.
In situations where a person was the last person known to keep a will, and on that person’s death, no one finds their will, the assumption at law is that the person destroyed the will. Since destroying and throwing out a will leaves no evidence of that intention, these situations create uncertainty. However, the law supports this so always remain cautious with were you keep your will. Further, ensure that your personal representative (formerly known as an executor) knows where to find your will.
Alberta courts always attempt to find a legal rationalization to follow a person’s last wishes. That said, frequently, determining the nature of those last wishes remains challenging. Most frequently, this occurs when a person creates a new will that conflicts with a prior will but includes no revocation clause. Case law holds that the courts will sometimes deem the, depending on the case facts:
- First will revoked;
- Conflicting provisions only become revoked; and lastly
- Second will, in whole or in part, is invalid.
These situations remain very fact specific. Your estate lawyer only has the ability to direct you and provide advice by reviewing the exact specifics in your situation. Further, due to the nature of these situations, often, no black and white answer exists.
Marriage And Divorce
At one time, getting married automatically revoked your will. This was a public policy law. This means that the province decided that the public interest was best served by ensure that a person’s estate falls to their spouse on their passing as a default. Of course people retained the right to change that in a will drafted after marriage. However, the province reversed their position in this matter. Now, in some instances, a deemed revocation of a will occurs on marriage or divorce. Most frequently this only impacts a former spouse or partner. However, always speak to your estate lawyer and / or your family law lawyer in order to determine how your specific situation impacts your estate plan.
Consequences Of Revoking Wills In Alberta
Firstly, please note that revoking wills in Alberta does not automatically revive a prior will. For example, once revoked, the last will does not come into effect again. This misconception continues to exist in Alberta. In fact, the law states that if a person revokes their will without creating a new will, then the person’s estate is intestate. This means that the intestacy laws come into play. Please use this link to learn about the order of distribution of a person’s estate in situations where they have no will.
Next Steps After A Revocation
Anytime a person revokes a will, other than by way of a new will, they need to create a new one. Intestate situations often lead to several problems. Read here for the reasons a will is important at each stage in a person’s life. Almost 100% of our clients who have a family member who passed without a will, immediate set out to draft their own so their family does not have to deal with that situation.
Wills & Estates Lawyers For All Your Estate Planning Needs
If you want to draft a new will, make changes to an old one, revoke gifts to specific people or just ensure you have a good estate plan, call our wills and estates lawyer. Kahane Law Office fully explains your options and steps you through the process in developing a comprehensive estate plan at flat rate fees. Emailing us directly here allows us to get back to you right away. However, if you want to call us, please call 403-225-8810 for our Calgary office and 780-571-8463 for our Edmonton Office.