Sunday, August 24, 2014

Can You Revoke a Quebec Notarial Will by Destroying a True Copy?

A notary in Quebec always retains the original of a notarial will and registers it under the Quebec Civil Code. Despite the usual rule in British Columbia that an executor must probate the original will, an exception is made for Quebec notarial wills, in which case, under section 36(1) of the Evidence Act, you may probate a copy that is certified by a notary as a true copy of the original. I have written about this before.

Under British Columbia law, one of the ways to revoke a will is to destroy the original. This is set out in section 55 (1) (c) of the Wills Estates and Succession Act, and was set out in section 14(1) (d) of the now repealed Wills Act.

This raises an interesting question. Under British Columbia law, can the maker of a Quebec notarial will revoke it by destroying a certified true copy of it?

John David Christian made a notarial will when he lived in Quebec in 1991. In it, he appointed Lorraine Leigh Morton, with whom he was living in a marriage-like relationship, as his executor and the beneficiary of his estate. The Quebec notary retained the original and gave Mr. Christian three certified copies.

Mr. Christian and Ms. Morton moved to British Columbia, and Mr. Christian became domiciled here.

In 2009, Mr. Christian and Ms. Morton separated and following mediation agreed on the division of their assets.

Mr. Christian died on December 29th, 2011, and he did not have any of the certified copies of the 1991 Quebec will or any new will among his possessions.

Ms. Morton received another certified true copy of the original will from a Quebec notary and applied to probate the copy in British Columbia. Mr. Christian’s mother, who would be entitled to the estate if her son died without a will, filed a caveat to oppose the application for probate.

There was evidence from both his family law lawyer and another lawyer that following his separation from Ms. Morton, Mr. Christian wished to change his will so that Ms. Morton would not be a beneficiary. He told his girlfriend that he had ripped up the will that left everything to Ms. Morton and pointed to the recycling basket, which had some ripped paper.

Mr. Justice Johnson, in Morton v. Christian, 2014 BCSC 1303, accepted the evidence of the lawyers and Mr. Christian’s girlfriend, but found it insufficient to prove that Mr. Christian in fact destroyed any or all of the certified true copies of the notarial will in his possession. But even if Mr. Christian had destroyed the true copies, doing so, would not, under British Columbia law revoke the notarial will. To revoke a will by destruction, it is necessary to destroy the original will, which is not possible with a Quebec notarial will, which remains in the possession of the notary.

In reaching his decision Mr. Justice Johnson considered section 36 of the Evidence Act allowing a certified copy of the notarial will to be admitted into probate, but held that it did not follow that it was sufficient to destroy a certified copy of a Quebec notorial will to revoke it.

Because the original is in the possession of the notary, destroying a certified copy is at best a symbolic destruction which is insufficient to revoke a will. Mr. Justice Johnson wrote at paragraph 57:

[57]         If I had found the contrary, tearing a copy of a notarial will, knowing that the original is safely lodged with a notary, appears to me to be no more effective than the “symbolical” steps referred to in Cheese v. Lovejoy (1877), 2 P.D. 251 (C.A.):
It is quite clear that a symbolical burning will not do, a symbolical tearing will not do, nor will a symbolical destruction. There must be the act as well as the intention. As it was put by Dr. Deane in the court below, “All the destroying in the world without the intention will not revoke a will, nor all the intention in the world without destroying: there must be the two.

Accordingly, if you have made a Quebec notarial will and wish to revoke it, under British Columbia law, it is not sufficient to tear up a certified copy. The best way to revoke it is to make a new will.

1 comment: said...

If Mr Christian had died March 31, 2014 or later, and if the torn up copy still existed as a "record", it would be open to the court to find that the destruction of that record, albeit not the original notarial will, was sufficient to cause a revocation under s 59 of WESA.