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.
