As important as a Will is to put in place, a change in a person’s circumstance may give rise to a desire or a need to revoke an existing Will, or may even force an involuntary revocation as a matter of law.
Just to frame things up, why would someone revoke a Will?
- Apart from just changing your mind, we can put it into a few broad categories
- You personally have undergone a marital change, asset growth, change in health status
- A beneficiary, executor or trustee has died, become incapable, reached age of majority, etc.
- Change in the law that has caused you to revisit your estate planning needs
So dealing first with a voluntary situation, how can a person revoke a Will?
- This may vary a bit by jurisdiction, there are generally three ways to do it
- Execute a valid new Will, which then supersedes the prior Will
- Make a written declaration revoking the Will in compliance with any statutory requirements
- Physically destroy the Will or direct someone else to do so — with the intention of revoking
- Remember that a person must have the requisite mental capacity to revoke a Will.
What about these circumstances that may ‘force’ a revocation?
- Generally we are talking about marital situations
- When a person marries, any existing will is entirely revoked
- There is an exception for Wills that are made in contemplation of marriage to a particular person at a particular time, and this should all be stated in the Will.
- When a person becomes divorced, a Will is not revoked but rather it is read as if the spouse had predeceased the testator.
- A separation is not sufficient; it must be a final divorce, though commonly under a separation agreement (assuming there is one), spouses give up entitlement to the other’s estate.
- There is no automatic revocation upon entering or leaving a common law relationship, no matter how long-lasting that relationship.
Does a Will revocation affect any other aspects of a person’s financial affairs?
- Insurance, RRSP and RRIF plan designations that are made directly with a financial institution are not automatically revoked by a marriage or divorce.
- However, where a beneficiary designation is clearly stated in a Will, the designation is revoked when the Will is revoked by whatever means
- For certainty, a copy of the Will should be deposited with the relevant institution