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Revival of a Will

1. Introduction

The recent case, Estate of Harold Franklin Campbell,[1] a decision of Mr Justice C Chang, involved a possible revival of a will and the potential application of section 21.1(1) of the Succession Law Reform Act.[2] However, with respect, in my opinion the decision raises some issues of possible concern.

2. Facts

After his first wife died, Harold Campbell (‘Harold’) made his Will in March 1996. It named his son Christopher executor and his daughter Lisa as alternative executor, and left the residue of the estate equally to them. Harold married Carol in October 2000. Then he made two handwritten documents to the will in 2016 and 2017. He signed both and attached them to his will. The 2016 document directed that certain objects be given to Carol; the 2017 codicil set out his wishes about the disposition of his remains. The reasons do not state when Harold died.

3. Analysis and Judgment

3.1 Revival

Justice Chan rightly noted that by virtue of section 16 of the SLRA as it read in 2000, on Harold’s remarriage to Carol in that year his 1996 will would have been revoked. This raised the issue whether the handwritten documents revived the will.

His Honour held that the two handwritten documents were valid holograph codicils under section 6 of the SLRA, since they were in the testator’s handwriting and signed by him. Then he considered section 19(1)(b) of the SLRA. It provides:

A will or part of a will that has been in any manner revoked is revived only.

. . .

(b) by a codicil that has been made in accordance with this Part, that shows an intention to give effect to the will or part that was revoked.

It is clear from the case law and indeed from the italicised words of section 19(1)(b) that the doctrine of revival is not automatic. For example, in Morrison v Owen[3] Justice Fortier referred to Western cases which make clear that the words that show an intention to revive a revoked will ‘must be words which make clear beyond doubt the intent to revive’.[4]

Justice Chan applied section 19(1)(b) and held that the Will was revived by the 2016 Codicil. He stated that the 2016 Codicil ‘evinces that, as at that date, Harold thought the Will to be both valid and subsisting and he purported to vary it by making that Holograph, which sets out specific bequests to Carol. In other words, by making that codicil, he gave effect to the Will’. This may be a quibble, but Harold seems to have been operating under the belief that he was varying a will which he thought valid. Can that be considered to be an intention to revive the will that was in fact invalid? The case law suggests that it can.

3.2 Validation

In his application, Christopher, the executor, submitted that the court should make a validation order under section 21.1(1) of the SLRA which would declare that the codicils were effective to revive the Will on the ground that Harold’s intention should be read into the codicils. Justice Chan held that such an order was unnecessary. He also expressed the view that section 21.1(1) cannot be used to read into a testamentary document an intention to revoke, alter or revive a will, because it only permits a court to validate a document that fails strictly to comply with the SLRA’s formalities. I believe that this must be right.

However, it is concerning that Justice Chan does not tell us when Harold died. Did he die after 1 January 2022? Section 21.1(3) provides that subsection (1) came to force on that date. Thus, if Harold died before then, section 21.1(1) could not have been applied. Moreover, because of the specific provision in section 21.1(3) and because of the presumption against retrospective legislation, it would clearly be impermissible to give this section retroactive effect. The repeal of section 15(a) of the SLRA (that a will is revoked on a subsequent marriage) also came into force on 1 January 2022.[5] Thus, if Harold died before that date, the Will was indeed revoked, but if after, it would not have been.

Of course these remarks are merely dicta since Justice Chan held that he did not have to apply section 21.1(1). But they are concerning and could have been avoided if the reasons had recorded the date of Harold’s death.

[1]    2023 ONSC 4315.

[2]    RSO 1990, c S.26 (‘SLRA’).

[3]    (1991), 44 ETR 290, 1991 CarswellOnt 551 (Gen Div), para 26.

[4]    Re McKay Estate, 1953 CarswellBC 164, [1053] 3 DLR 224, para 6.

[5]    See Accelerating Access to Justice Act, s 9(4).


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