Dependent Relative Revocation

"When a revocation does not revoke."

I have trouble wrapping my mind around the words “dependent relative revocation.” I prefer to think of it as a “conditional revocation,” but I am not sure this simplifies matters a great deal.

This doctrine applies where the court finds that the maker of a will (or the “testator”) has done something to revoke his or her will—such as destroying the will--but that the testator intended that the will would be revoked only under certain conditions. In most cases this doctrine has been applied where the testator has revoked a previous will in order to make a new will, but the testator does not in fact complete the new will, or the new will is invalid. If the court finds that the testator’s intention to revoke the first will were dependent on the making of a valid new will, and the testator did not make a valid new will, the court may ignore the revocation, and give effect to the first will.

The Supreme Court of British Columbia considered the doctrine of dependent relative revocation earlier this week in Jung, Re Estate of Horace Lee, 2005 BCSC 1537.

Mr. Hubert Lee made a homemade will in 1977, appointing his brother Horace Lee as executor, leaving his estate to Horace.

In 1985, Hubert made a second homemade will in which he revoked his earlier wills (called a “revocation clause”), and he appointed Horace and his sister Estelle Jung as co-executors. The following was written on the first page of the 1985 will:

“My shares of Lee Bros. Holding Co. My property of 817 North Park St., Victoria, B.C. and 35% of cash & bonds to my brother Horace. 35% to my sister Estelle of cash & bonds. 35% divided evenly for my sisters Elsie, Edythe, Effie and my brothers Harold & Henry of cash & bonds.”

The case involved a dispute over whether Hubert wrote the above quoted words after Hubert and his two witnesses signed the will. As I have written in an earlier post, British Columbia has strict technical requirements for wills. If there is an alteration to a will after the will is signed, the testator and the two witnesses must sign “ in the margin or in some other part of the will opposite or near to the alteration, or…at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.”

Although the facts were in dispute, Mr. Justice Burnyeat found that Hubert had written those words setting out how his estate was to be distributed after Hubert and the witnesses had signed the will. The alternations were not signed in accordance with the requirements of the Wills Act, RSBC 1996, c. 489.

In the words of Burnyeat J.,

In the circumstances but with considerable regret, I am satisfied that I am precluded from implementing the clear intention of Horace in view of the relevant statutory provisions and decided cases relating to the effect that the Court can give to alterations that are added after a will has been executed when the alterations are not properly witnessed.

Having found that the most important part of Hubert’s will—the part saying who gets what—was not valid, Mr. Justice Burnyeat then had to decide the effect of the revocation clause in the 1985 will. Keep in mind that Burnyeat J. found that the 1985 will was valid; only the part Hubert added after he and the witnessed signed the will was invalid. If the rest of the 1985 will were valid, then arguably the revocation clause was valid. If the revocation clause were valid then Hubert would have revoked the 1977 will, without providing how his assets would be distributed, in which case the estate would go to those of Hubert’s brothers and sisters who survived him, and to the children of those siblings who died before Hubert under the rules for dividing an intestate estate.

However, Burnyeat J. relied on the doctrine of dependent relative revocation, or conditional revocation, in holding that the revocation clause did not revoke the 1977 will. He canvassed a number of Canadian cases in which the courts applied this doctrine as follows:

(a) where the first will is destroyed but the subsequent will cannot be found: Re Hennessey’s Will; Canada Permanent Trust Company v. Holloway et al (1984), 46 Nfld.& P.E.I.R. 91 (Nfld. S.C.); and Re Keating Estate, [1981] N.S.J. No. (Q.L.) 112 (N.S. Ct. Probate);
(b) where the first will was said to have been cancelled but the second will could not be found: Irish v. Dwyer (1986), 23 E.T.R. 1 (Nfld. S.C.); Pigeon Estate v. Major, [1930] 2 D.L.R. 532 (S.C.C.); Re Teale (1923), 54 O.L.R. 130 (O.S.C.- H.C.D.); and Downey Estate v. Foster, [1991] O.J. (Q.L.) No. 3475 (Ont. C.J.-G.D.);
(c) where a second will was executed but the testatrix was found not to have had testamentary capacity: Sheen v. Sheen, [2005] 6 W.W.R. 627 (Man. C.A.);
(d) where a second will was found not to be valid because the attesting witnesses were not present when the document was signed or because one of the witnesses was the beneficiary: Valantine v. Whitehead (1990), 37 E.T.R. 353 (B.C.S.C.); and Re Tuckett (1907), 9 O.W.R. 979 (Surrogate Court);
(e) where a subsequent codicil was executed under the mistaken belief that one of the persons who would receive a residual bequest in the will had died: Sorensen Estate v. Hawley (1981), 10 E.T.R. 282 (B.C.S.C.); and
(f) where a portion of a will was cut out but never replaced: Re Service, [1964] 1 O.R. 197 (Ont. C. Ct.); and Re Anderson [1933] 1 D.L.R. 581 (Ont. C.A.).

In the case before him Burnyeat J. found,

…that the intention of Hubert when adding the revocation found in the 1985 Will was clear — he wanted to revoke the 1977 Will and substitute the bequests that he added to the 1985 Will after it had been executed. Accordingly, I hold that the revocatory clause in the 1985 Will was conditional, the condition being that the bequests which were set out would be valid. The best effort I could make to give effect to at least some of the intentions of Hubert is to order that the 1985 Will be admitted to Probate with the 1977 Will, but with the revocatory clause in the 1985 Will kept from Probate.

In the result, Hubert's estate went to the beneficiary of his 1977 will, his brother Horace. Because the 1977 will had already been probated and the estate substantially administered, the court found that granting probate of the 1985 will would be pointless.

[Since I wrote this post, the British Columbia Court of Appeal allowed the Plaintiffs' appeal, and ordered a new trial. The reasons for judgment consider evidentiary issues, and do not consider Mr. Justice Burnyeat's analysis of the doctrine of dependent relative revocation. I have written a post on the Court of Appeal decision here, and the decision is reported at 2006 BCCA 549.]

[After a new trial, reported here, Mr. Justice Silverman found that the portion of the will containing the gifts to the other siblings was in the will when Henry Lee and the witnesses signed the will. I have now written about the decision here. The doctrine of dependant relative revocation did not need to be considered.]