09 Feb The Will Kit: Wills Explained: The Revocation Clause

This is a continuation of our series examining a different part of a Will ¹ signed in the Province of Ontario in order to share basic practical knowledge of this important legal document, which can save you taxes and create a social safety net for your loved ones.

In our last newsletter, we looked at the introductory clause. This week, we examine the revocation clause. In our next newsletter, we will examine the disposition of body clause.

The revocation clause expressly states that the Will revokes any prior Wills. It typically takes the following form:

I revoke all Wills and Codicils previously made by me.

As a result of ss. 15(b) of the Succession Law Reform Act (“SLRA”), it is not, strictly speaking, necessary to include this clause when disposing of all your property. However, to ensure you and your estate trustees understand what the effect of executing a new Will is, it is common practice to include it. In addition, subsection 15(c) of the SLRA allows you to revoke a Will by writing a declaration of intention to revoke your Will. Other means of revocation include burning, tearing or otherwise destroying a Will. As well, as we saw last week, marriage also revokes a Will, unless it is written in contemplation of marriage.

In older Wills, you might notice a revocation clause containing the expression to the effect that the testator (i.e. the person signing the Will) revokes “all wills and testamentary dispositions of every nature or kind whatsoever made by the testator.” Let’s say you and your spouse have RRSPs. You designate each other as your beneficiary at your financial institution. You then go to your lawyer’s office to purchase a Will. Nothing complex, you think, and in a few weeks you sign your Will. Without knowing any better, you (and your lawyer) sign off on a Will that states under no uncertain terms that you revoke “all previous wills and testamentary dispositions of every nature or kind whatsoever.” A lawyer focussing on Wills will know that this is a no-no and that the standard revocation clause intentionally omits reference to other testamentary dispositions. That is because in Ashton Estate v. South Muskoka Memorial Hospital Foundation (2008), 40 E.T.R. (3d) 153 (Ont. S.C.J.), a clause revoking “all wills and testamentary dispositions of every nature or kind whatsoever made by [the testator]” was found to revoke a beneficiary designation on a registered retirement income fund.

A careful Will drafting lawyer will restrict the scope of the revocation clause in order not to inadvertently affect existing beneficiary designations. He or she should also separately deal with changes to the beneficiary of any RRSP, other registered plan, life insurance policy or segregated funds.

If you are preparing separate Wills to deal with different categories of assets, for example, to deal with property located in different jurisdictions, or assets that do require probate to administer vs. those that do not require probate), it is important that the revocation language only revoke prior Wills dealing with the particular assets governed by the Will. Otherwise, you might inadvertently revoke, for example, your Will in Florida dealing with Florida property, or your Primary Will (dealing with assets that require probate) might revoke your Secondary Will (dealing with assets that do not require probate, and which can therefore save you probate tax).

In sum, drafting is much like surgery. The draftsperson, like the surgeon, must be careful to use her equipment with the utmost precision in order to prevent cutting an artery.