Wills, Estate & Power of Attorney

Surprise! Father Changes Will to Benefit New Wife Over Devoted Son – The Law on Revoking a Will

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Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Surprise! Father Changes Will to Benefit New Wife Over Devoted Son – The Law on Revoking a Will

An Alberta case from a few years ago highlights an important point about Wills:  They confer no rights until the very moment of the testator’s death, and can be revoked by him or her at any time before then.

The backstory went like this:  Robert was born in 1973, as an only child.  His parents divorced five years later.

When Robert was 16, his father started encouraging him to come work in his Insurance Business.  Robert did so, starting in full-time employment at age 18 right out of high school, as soon as he got his insurance license.  According to Robert, his father also told him many times over the following years that when he passed away, he wanted Robert to have all the shares in the Insurance Business.  The father told Robert that his Will reflected that intention.

When the father later married a widow named Audrey in 1992, he tinkered with the structure of the Insurance Business, giving both Robert and Audrey some of the shares in it.  For Robert’s part, he was told this was in recognition of the work he had done and would be doing in the future.

As the years passed, Robert continued to work diligently in his father’s Insurance Business.  The father retired in 1998, and he and Audrey spent six months a year in Phoenix.

Unbeknownst to Robert, his father had new Wills prepared in 2000.  Although he still would be leaving the bulk of the Insurance Business to Robert, that gift was now deferred until after Audrey died.    Also, Audrey became the new beneficiary of the father’s life insurance policy, in place of Robert.

This all came to light when Robert’s father died in 2004.  Naturally, upon learning of the unexpected changes to the Will and life insurance policy, Robert objected; he claimed his father had promised to give him the shares in the Insurance Business outright upon his death, and promised never to change the terms of his Will or the life insurance beneficiary designation. This led to various litigation, which in turn led to the court reviewing the long-established law in this area.

The court stated a general principle under Canadian law:  No Will is irrevocable.  As applied to the fathers’ gifts made by Will in this scenario, the law mandated the following conclusions:

  • Assuming the father was making a testamentary gift, by which he (as donor) intended to give away Insurance Business to Robert, the gift was effective only upon the father’s death.
  • Until that time, the father’s intended gift to Robert was fully revocable by him.
  • The father retained absolute legal control of all his property (including the shares), until moment of his or her death. Despite his assurances to the contrary, he could favour his new wife over his son, if he wished.
  • In light of the father’s changes to the Will, Robert obtained no legal interest in the Insurance Business – as the court put it, it was “nothing more than a hope really.”

And as for Robert’s claims that his father had verbally promised him not to change his Will or the life insurance beneficiary:  To be enforceable, any such agreement must be more than a mere promise or representation by the father of his intentions – even if Robert as recipient was relying on that promise.  The court cited from another case called Clancy v Gough:

…The law is concerned not with the parties’ intentions but with their manifested intentions. It is not what an individual party believed or understood was the meaning of what the other party said or did that is the criterion of the agreement; it is whether a reasonable man in the situation of that party would have believed and understood that the other party was consenting to the identical terms. 

Applying this principle, it was not reasonable to conclude the father still wanted Robert to have the Insurance Business while Audrey was still alive, since his Will clearly said otherwise.  And even if the promise was in place, Robert’s recourse was perhaps a breach-of-contract claim against his father’s Estate; the underlying validity of his father’s Will remained unaffected.

For the full text of the decisions, see:

Marusin v Brian WL Tod Professional Corporation, 2014 ABQB 743 (CanLII)

Clancy v. Gough, 2011 ABQB 439

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.