Standard
When preparing a will a lawyer must consider the scope of the revocation clause.¹ In particular, a lawyer should request copies of existing wills and other testamentary instruments and ensure the revocation clause cannot be interpreted to apply beyond the scope for which it is intended² or if there are multiple wills operating concurrently, that one does not revoke the other.³
Footnotes
1. “A solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he has undertaken … The requisite standard of care has been variously referred to as that of the reasonably competent solicitor, the ordinary competent solicitor and the ordinary prudent solicitor.” per LeDain, J. in Central & Eastern Trust Company v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 SCR 147, 31 DLR (4th) 481, at [58].
Feeney’s Canadian Law of Wills, 4th Edition at section 10.58 –“If the will has been drawn by a lawyer, the court will assume that the technical terms are used in their correct, technical, legal sense, unless it clearly appears that they were intended to bear some other meaning.”
2. Mulrooney Estate (Re), 2016 NSSC 352 – Justice McDougall considered whether the wording in a will signed subsequent to a beneficiary designation was sufficient to revoke the specific designation and found it did not. See also, Ashton Estate v. South Muskoka Hospital Foundation, 2008 O.J. No. 1805 – a clause revoking “all wills and testamentary dispositions of every nature or kind whatsoever” was found to revoke a beneficiary designation on a registered retirement income fund.
3. Robinson Estate v. Robinson, [2010] O.J. No.2771 – Testator executed a will in Spain indicating said will would deal with her European property and her Canadian will would deal with her Canadian property. Testator subsequently amended Canadian will including standard revocation clause. The drafting solicitor had no knowledge of Spanish will. Court upheld revocation clause had effect of revoking all prior wills. See also Multiple Wills Standard (N.B. – this is a reference to what will be a future standard).
Additional Resources
Section 19 of the Wills Act, RSNS 1989, c 505 sets out conditions for revocation of a will, in particular s.19(c) execution of a new will.