More than One Will: The Issue of Revocation

By Katherine Hagan, Student-at-Law

A recent Alberta decision has addressed the issue of a Testator leaving two wills without either document containing an express revocation clause . In the decision Sokalski Estate (Re), 2019 ABQB 28, the Court was required to determine which document formed the Deceased’s last will, with wills being created both in 2011 and 2017. Ultimately, Justice Michalyshyn found that the 2017 will was the Deceased’s last will on the evidence before the Court establishing the Deceased’s intentions as a testator.

The parties, the Deceased’s children, disagreed on which of the Deceased’s testamentary documents constituted the last will. The Deceased had created three documents, dated March 6, 2011, November 1, 2016 and May 14, 2017, without ever revoking the prior documents. The parties did not dispute that all of the documents were authentic, valid and documentary in nature, and the parties ultimately agreed the latter two documents could be read together. 

The representatives of the Estate, the Deceased’s 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. The sons argued that only these readings gave effect to the intentions of the Deceased. Conversely, the Respondents , the Deceased’s daughters, argued that the Deceased was not the “type” to have multiple testamentary documents. Further, the Daughters argued that much had changed in the Deceased’s estate and relationships between 2011 and 2017, and so the documents should not be read together.

Ultimately, the issue facing Justice Michalyshyn was whether the 2017 will revoked the earlier 2011 will. The Court relied on its previous decision in Bates v. Oryshchuk, 2009 ABQB 688 to hold that a Court must examine the intention of the testator to determine whether the testator impliedly revoked an earlier will. 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 intends to dispose of all the testator's property, the Court may infer that the testator has implicitly revoked the first will in its entirety.

The Court held that all parties relied heavily on speculation and opinion without being supported by evidence. Still, on the evidence before him, Justice Michalyshyn concluded that the Deceased intended for the 2017 will to be his last will and replace the 2011 will for three reasons. First, the 2017 will disposed of all of the Deceased’s assets. Second, there was no mention of the 2011 document within the contents of 2017 will and no evidence was before the Court that the documents should be read together. Third, the 2017 will was similar in form to the 2011 will – it dealt with executors, debts owing to the estate, specified gifts and residue in a similar manner to the 2011 will.

While the 2017 will did not contain an express revocation clause, Justice Michalyshyn held the revocation was implied by the Deceased’s intentions to the 2011 will. Additionally, Justice Michalyshyn found the two testamentary documents to be inconsistent with each other, as the 2017 will addressed changes to the Deceased’s assets and familial relationships. Therefore, the documents were not intended to be reads together.

This decision serves as a useful reminder for a Testator to expressly revoke previous wills to prevent a dispute on which testamentary document or documents is valid. Additionally, if the Court has to determine the intentions of Testator, the Court relies upon documents and supported evidence of statements of intention, particularly from uninterested third parties. If you have further questions about the express or implied revocation of a will or other estate issues, please contact any member of our Wills and Estates practice group.