Revoking Wills: Navigating Section 55 of WESA in British Columbia
Introduction
Imagine you suddenly realize that your will no longer reflects your wishes. You understand the importance of revoking the old will, but you wonder: is simply shredding the document enough? In British Columbia, the authority and methods for revoking a will are outlined in Section 55 of the Wills, Estates and Succession Act (WESA).
This article will explore the lawful methods for revoking a will, explain the common-law presumption that applies when the original will cannot be found, and offer practical strategies to ensure your estate plan is secure.
What Is a Will?
A will is a written instrument that outlines a person’s testamentary intentions: who inherits what, who serves as executor, and any specific gifts or directions. Under WESA, a valid will must:
Be in writing;
Bear the testator’s signature at its end;
Be witnessed by two independent witnesses who also sign in the testator’s presence.
It is also worth noting that prior to the WESA, marriages could revoke a will unless specific clauses were included to facilitate that; however, this is not the case now.
Lawful Methods to Revoke a Will Through (Section 55(1)) of the WESA
Section 55(1) of the Wills, Estates and Succession Act (WESA) says that a will, or any part of it, can only be revoked in any of the following ways.
1. Making a New Will (s. 55(1)(a))
If you write a new will that includes a statement saying it cancels all previous wills (for example, “I revoke all prior wills), it will automatically replace the earlier documents. The new will must be written down, signed by you at the end, and witnessed by two people who are not related to you.
2. Writing a Declaration (s. 55(1)(b))
You can also write a formal declaration that cancels all or part of a valid will. This document must be signed by you in the presence of two witnesses.
3. Destroying the Original Will (s. 55(1)(c))
You or someone else, as long as you are present and directing them, can physically destroy the original will by burning, tearing, shredding, or otherwise getting rid of it. The key is that this action must be done with the clear intention to cancel the will. Just damaging the will without a clear intention may not revoke the will.
4. Any Other Deliberate Act, Section 58’s Curative Powers (S. 55(1)(d))
Section 58 of the WESA empowers courts to cure a defective revocation or alteration. Even informal acts such as deleting a digital file, penciling "cancelled" in margins, or marking through pages may revoke a will if evidence demonstrates clear intent. The legislature aimed to balance technical compliance with testamentary autonomy in an age of electronic storage.
When the Original Will Disappears: Presumption of Revocation
If the signed original will cannot be found after the testator's death, common law presumes that the testator, who was last known to possess the will, intended to revoke it by destroying it; as reaffirmed in the matter of Sigurdson v. Sigurdson, 1935 CanLII 337 (SCC).
On the other hand, courts may also consider several factors to rebut this presumption, including the reasonableness of any existing copy, the testator's relationship with beneficiaries, and whether the testator made statements affirming the will's validity before death.
Additional considerations, such as the orderliness of the testator's document storage and awareness of intestacy consequences, may also influence the court's decision.
Partial Destruction and Ambiguous Acts
Destroying only part of a will revokes that portion if intent can be proven. However, if the remaining clauses are still legible, it may prevent the revocation. Courts typically look for unmistakable obliteration, where using a shredder is viewed more favorably than using scissors for a clean cut.
Additionally, the destruction of a true copy of a will does not constitute revocation if the original is known to be securely stored elsewhere, as established in Morton v Christian, 2014 BCSC 1303.
Practical Tips for Will-Makers
Use a professional will-drafting service to ensure full compliance with WESA.
Label informal writings clearly (e.g., “DRAFT—Not a Will”) to avoid accidental probate disputes.
Avoid writing on or marking up your original will without legal advice.
Notify your executor about any secondary writings or digital records that reflect your wishes.
For more information, here is a guide on drafting wills:
https://www.parrbusinesslaw.com/blog/create-a-will-in-british-columbia
Frequently Asked Questions
Does marriage revoke my old will?
No. Since WESA’s commencement on March 31, 2014, marriage does not cancel an existing will. You must take one of the Section 55 steps.
Is tearing only the signature page enough?
Generally, courts need clear proof that someone intends to revoke a will. Just tearing the signature page is often not enough; unless the will is fully unusable and intent to revoke is clear, partial destruction may not hold legal weight.
Can deleting an electronic copy revoke my will?
No. The original paper governs. Deleting electronic versions may show intent but does not itself revoke a will.
Should I keep photocopies?
Yes. A conformed copy held by your lawyer or executor provides vital backup, though probate courts always prefer the executed original.
Key Takeaways
A will can be revoked through a new will, a written declaration, or physical destruction of the original document; intent is key, and accidental damage does not suffice.
When revoking a will, it’s best to do so thoroughly and under legal consultation.
A missing original will lead to a legal presumption of revocation, but this can be challenged with strong evidence.
Clear communication about your intentions is essential to prevent misunderstandings.
Secure storage of your will helps avoid costly probate disputes.
Need Advice?
If you believe a will treats you unfairly or want to ensure your own estate plan avoids future disputes, book a consultation with Parr Business Law. We’ll walk you through your rights and help design a plan that protects your loved ones and your legacy.
