In the recent case of Sokalski Estate (Re), 2019 ABQB 285, the deceased left two wills one in 2011 and the other 2017, without expressly revoking the earlier one. The estate applied to the Court for a determination regarding which document or documents form the deceased Mr. Sokalski’s last will.
The applicant representatives of the Estate were the deceased’s sons.The respondents were the deceased’s daughters.
The parties were unable to agree which of several testamentary documents constituted the deceased’s last will. The documents were dated in 2011, 2016, 2017. The 2016 and 2017 documents were to be read together and were read together as the “2017 will”. The dispute is between those documents, and the 2011 will.
All the documents were in the deceased’s own hand. No one disputed that all these documents were authentic, valid, and testamentary in nature. None of the documents contained words of revocation, nor words such as ‘my last will’ or ‘my final 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, gave effect to what they say were the intentions of the deceased. It appeared the sons would benefit considerably if their arguments succeeded.
The sons filed affidavits with exhibits setting out certain factual assertions to support their position(s), if not all of which was extrinsic evidence, according to the Court. They asserted among other things that soon after Mr. Sokalski’s passing the 2011 and 2017 wills were found on the same day and in the same place. For this proposition, the sons relied on the signed but not sworn account of a grandchild and potential beneficiary under both wills. According to the Court, much of the material in the affidavits were in fact argument and/or speculation unsupported by any evidence and was of no probative value in the application before the Court.
The daughters and their representatives also filed affidavits. One of the affidavits deposed that the 2011 will was in a different location from the 2017 will, “among some old and disorganized documents”. According to the daughters’ affidavits, the deceased was not “the type” to have multiple testamentary documents; rather, he wanted to keep things simple and not technical, for example by drafting a 2017 codicil to a 2011 will.
With reference to case law, The Court opined that implied revocation, like express revocation, is derived 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 whereby the terms of a later will 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 had by implication revoked the whole of the first will.
On the evidence before the Court, it found as a fact that the 2017 will disposed of all the testator’s property. There was no evidence of estate assets left out of the distribution scheme of the 2017 will. On the face of the 2017 will there was no reason to conclude the deceased did not intend it to be his last will and testament. Indeed, there was no reason to conclude the testator intended the 2017 will to be read together with, or as a codicil to, the 2011 will. 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. The court determined that the 2017 will was materially inconsistent with the 2011 will and appeared to reflect significant changes in circumstances related to family relations and assets.
All of this is consistent with the conclusion that the deceased ‘started over’ when he prepared his 2017 will, so the 2017 will was intended to and did revoke the 2011 will. The revocation is by implication.
Though it was not necessary for the Court to do so, it did address the extrinsic evidence presented and concluded it did little or nothing to advance the interests of the applicants. If anything, it strengthened the respondents’ position, and favoured the conclusion that the document to be admitted to probate was the 2017 will.
It is good practice to expressly revoke previous wills when creating a new one. It will serve to reduce the risk of litigation (and cost).