Vancouver Estate Lawyer- Lost Wills and The Presumption of Destruction

Trevor Todd and Jackson Todd have over sixty years combined experience in handling estate disputes, including lost wills and the presumption of destruction.

 

Facts of Re Finsant estate 2024 BCSC 217

The deceased died at the age of 81 years in her home. Searches of the home and her personal effects did not find a will. It was known that she had executed a will, almost 20 years earlier, and that the deceased had possession of it. She lived alone, and had no children or surviving siblings and her home was reasonably orderly.

The court found that she appeared to be mentally competent.

The estate dispute was between the named beneficiaries in the will and her next of kin on an intestacy.

 

Under these circumstances, the court found that she had either intentionally destroyed the will or was lost, stolen or accidentally destroyed.

There is a presumption of destruction of the will that the court found had not been rebutted, and that she must be presumed to have died intestate.

 THE LAW

The presumption of destruction was set out in Welch v. Phillips (1836), 1 Moo PC 299 at p. 302, and remains the law in British Columbia: Haider v. Kalugin, 2008 BCSC 930, at para. 11. If, as here, a will is traced to the possession of the deceased and last seen there and is not forthcoming on death, it is presumed to have been destroyed by the deceased, a presumption that holds unless there is “good and sufficient reason to repel it.”

In modern Canadian civil law, there is only one standard of proof in civil cases regardless of the nature of the allegation, namely, proof on a balance of probabilities: F.H. v. McDougall, 2008 SCC 53, at para. 40. But the quality of the evidence necessary to make a finding on that standard will depend on the inherit probabilities or improbabilities: McDougall; Canada v. Fairmont Hotels Inc., 2016 SCC 56, at para. 36.

As Justice Ehrcke explained in Thierman Estate v. Thurman, 2013 BCSC 503 at para. 43:

The presumption [of destruction] recognizes that the burden of proof is on the party attempting to rely on a non‑original copy of a will. Thus, the presumption of destruction of a will that had been in the testator’s possession but cannot be found on his death may be rebutted by evidence establishing on a balance of probabilities that the will was inadvertently lost or misplaced.

 

The ultimate issue is whether, on a balance of probabilities, the will was more likely to have been deliberately destroyed because the testator had a change of heart or was more likely lost, stolen or accidentally destroyed. The legal onus is on the applicant – in this case Ms. Beggs – as the person trying to rely on a non‑original copy. What the presumption adds is the common‑sense point that we would expect a person who wants a will to be executed to keep it where it can be found when they die. In the absence of a contrary reason, this is the more inherent probability. The application of the legal standard and burden of proof will take this into account.

In other words, if a will in the deceased’s possession cannot be found after a reasonable search, the quality of evidence necessary to support the inference that it was destroyed intentionally is less than that required to support the inference that it was lost or inadvertently destroyed.

At para. 13 of Haider,  the court set out the factors typically looked at in deciding whether the presumption of destruction has been rebutted as follows:

 

  • whether the terms of the will itself were reasonable;
  • whether the testator continued to have good relationships with the beneficiaries in the copy of the will up to the date of death;
  • where personal effects of the deceased were destroyed prior to the search for the will being carried out;
  • the nature and character of the deceased in taking care of personal effects;
  • whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated;
  • statements made by the testator which confirm or contradict the terms of distribution set out in the will;
  • whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers;
  • whether there is evidence that the testator understood the consequences of not having a will, and the effects of intestacy;
  • whether the testator made statements to the effect that he had a will;

 

 

Presumption of Revocation of Lost Will Rebutted

In Re Galloway Estate 2023 BCSC 1204 the presumption of revocation of a lost will was rebutted and a copy of the deceased’s will was admitted to probate.

Because the safe keeping of the last will was the fault of the testator, each of the parties were awarded special costs.

The presumption of revocation was summarized in Morton v. Christian, 2014 BCSC 1303

[50] The defendants rely on a presumption of revocation, which was succinctly described by A.F. Wilson J. in Haider v. Kalugin, 2008 BCSC 930 at para. 9:
If a Will last known to be in custody of testator is not found at his death, the presumption is that the testator destroyed it with the intention of revoking it (“animo revocandi”). However, that presumption may be rebutted by evidence, written or oral, of the facts. The strength of the presumption will depend on the character of the custody which the testator had over the Will: Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (English C.A.).

[51] In Haider there was no direct evidence that the testator ever had the original will in his possession, and the court refused to draw that inference. The presumption was held not to apply.

[52] The presumption of revocation is based in part on a logical inference that a person of ordinary prudence would keep safe an original document as important as a will, and that failure to find such an important document after a person’s death is presumptive evidence that it was intentionally destroyed by that prudent person. It goes to both the physical act of destruction and the intention to destroy …

In Haider v Kalugin 2008 BCSC 930 the Court identified the following as factors that might be considered in determining whether the presumption is overcome such that a copy should be admitted into probate:

• whether the terms of the will are reasonable;
• whether the deceased continued to have good relationships with the beneficiaries under the will up to the date of death;
• whether personal effects of the deceased were destroyed prior to the search for the will being carried out;
• the nature and character of the deceased in terms of taking care of their personal effects;
• whether there were any dispositions of property that support or contradict the terms of the will;
• statements made by the testator confirming or contradicting the terms of distribution set out in the will;
• whether the deceased was of the character to store valuable papers and whether the deceased had a safe place to store papers;
• whether there is evidence that the deceased understood the consequences of not having a will, and the effect of an intestacy; and
• whether the deceased made statements indicating the deceased had a will.
While the listed considerations may be helpful, all of the relevant facts in a case must be considered. The list is non-exhaustive.

The court in Galloway found that it did not make sense for the testator to intentionally destroy the will as on an intestacy a person he was known to despise would have inherited.

Presumption of Revocation and Lost Wills

Re Bennett Estate 2023 BCSC 559 discussed the presumption of revocation, where the original will of the deceased had been lost, and in an application for directions, ordered that a copy of the will could be probated as there was no evidence that the original will was last in the possession of the deceased so s to invoke the presumption.

The court found that the copy of the will represent of the testamentary intentions of the deceased.

The Presumption of Revocation

The presumption of revocation was explained as follows by Wilson J. in Haider v. Kalugin, 2008 BCSC 930

[9] If a Will last known to be in custody of testator is not found at his death, the presumption is that the testator destroyed it with the intention of revoking it (“animo revocandi”). However, that presumption may be rebutted by evidence, written or oral, of the facts. The strength of the presumption will depend upon the character of the custody which the testator had over the Will: Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (English C.A.).

[10] In Sigurdson v. Sigurdson [1935] 2 D.L.R. 445 (S.C.C.), at paragraph 49, Davis J. said:
[49]1 It needs very clear and convincing evidence to establish what is alleged to be a lost will. . . .The person propounding such a will has a burden of proof that persists throughout the whole trial to satisfy the court at its conclusion that the will is in fact lost and was not destroyed by the testator with the intention of putting an end to it. Each case of course turns upon its own facts but the principles respecting the well-settled presumption against the Will must be applied to the facts.

[11] In Welch v. Phillips (1836) 1 Moo PC 299, at 302, referred to in Bobersky Estate (Re) [1954] A.J. No. 12 (Alta Dist. Crt.), at paragraph 6, the court said:
[6] If a will traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by the deceased himself; and that presumption must have effect, unless there is good and sufficient reason to repel it. It is a presumption founded on good sense, for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety and would not be either lost or stolen, and if, on the death of a maker, is not found in his usual repositories or else where he resides, it is in a high degree of probable that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others, which raises a higher degree of probability to the contrary.

Haider was considered. in Whitehead Estate, 2010 BCSC 348 [Whitehead].

At para. 28, the Court concluded that there was no evidence upon which it could conclude that the will of the deceased was properly executed or a true copy of the original will.
At para. 29, the Court went on to consider what the situation would be if that conclusion was incorrect, and the will was properly executed and a true copy. The Court stated that in that case:
… the next issue is whether the original will can be traced to the possession of the deceased. If it can be traced to her possession then on a finding that the original has been lost, the presumption arises that it has been destroyed with the intention of revoking the will.

After referring to Haider at para. 30, the Court in Whitehead concluded at para. 31:

On the evidence presented in this case, I am not able to find that the deceased ever had possession of the original will and therefore the presumption that the will has been destroyed with the intention that it be revoked does not apply.

Safeguard Your Original Will

Safeguard Your Original Will

It is important to safeguard ones originally signed the will as a presumption of revocation may arise if the original is lost that may result in expensive litigation with an uncertain outcome.

Historically lawyers wanted to and did keep their client’s original wills, both as a safeguard and in the hope of ultimately doing the probate work upon death.
More recently, law societies throughout the country have cautioned lawyers to not do such due to the possible liability in the event the original will is misplaced.

Lawyers typically now advise their clients to secure their original will in a safe place such as a safety deposit box, and to advise their trustee where to find it as a photocopy of the will may not suffice.

In British Columbia it is very advisable to file a Wills Notice with the director of vital statistics indicating where the original will is kept.

The Ontario decision of Levitz v. Hillel Long-Term Care Foundation , 2017 ONSC 6253 is what is known as a “ lost will case “ .

The court in Levitz refused the presumption of revocation, and allowed a “trued up copy” of the will found in the deceased’s apartment to be admitted into probate.

The deceased made a 2010 will in accordance with her handwritten notes made in 2007, whereby she revoked a former will dated 2004 and made the long-term care foundation essentially the sole beneficiary of her $7 million estate.

The original 2010 will could not be located after her passing in 2016, and the executor of the estate brought an application for a determination of whether the presumption that the testator had intentionally destroyed the original 2010 will had been rebutted.
After reviewing the evidence, the court allowed the trued up copy of the will to be admitted to probate, finding that the testator was an educated woman who knew the importance of legal documents and who had made two wills. Statements by independent witnesses before her death confirmed that she had not intended to die without a will in place, and the likely and reasonable explanation therefore was that the original 2010 will had been lost or misplaced.


The Law on Lost Wills and The Presumption of Revocation

The leading case in Ontario on lost wills, Sorkos v. Cowderoy 2016 OAC 194 ( Ontario C.A.) was followed.

In order to prove the lost will, an applicant must:

  1. provide proof of the due execution of the will;
  2. provide proof of the contents of the will;
  3. provide particulars which trace possession by the testator of the will to the date of the testator’s death, and afterwards if the will was lost after death;
  4. rebut the presumption that the will was destroyed by the testator, with the intention of revoking it

The applicant must rebut on the balance of probabilities, the presumption that the will was destroyed by the testator, with the intention of revoking it – Lefevre v. Major ( 1930) SCR 252 (SCC) at 257.

Revocation of Wills Post WESA

Revocation of Wills Post WESA - Disinherited

The introduction of the Wills Estates and Succession act (WESA) on March 31,2014 made a few  significant changes to the law relating to the revocation of wills.

Probably the most significant change was that marriage after the execution of a will no longer revokes a will. This largely unknown fact had created much hardship in estate law over a long period of time.

The other significant change is the insertion of section 58 WESA known as the curative provision for  otherwise defective wills.

Section 55 of WESA provides as follows:

55 (1) A will or part of a will is revoked only in one or more of the following circumstances:

  • by another will made by the will-maker in accordance with this Act;
  • by a written declaration of the will-maker that revokes all or part of a will made in accordance with section 37 ;
  • by the will-maker, or a person in the presence of the will-maker and by the will-maker’s direction, burning, tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it;
  • by any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker’s direction, if the court determines under section 58 that

(i)     the consequence of the act of the will-maker or the other person is apparent on the face of the will, and

(ii)     the act was done with the intent of the will-maker to revoke the will in whole or in part.

(2) A will is not revoked in whole or in part by presuming an intention to revoke it because of a change in circumstances.

VOLUNTARY REVOCATION

It should be stated at the outset that section 58 WESA which is discussed later in this paper may well alter the common law stated hereafter quite dramatically if it is applied in the same sweeping effect that the courts have used that section to cure defective wills. To date there have been no reported cases on how the courts will apply section 58 WESA to remedy defective revocations, but I anticipate that the effects will be dramatic.

Voluntary Revocation can be accomplished by any of the following:

  • by executing a subsequent will or codicil that typically contains a revocation clause of the previous will;
  • a written declaration declaring an intention to revoke a will and duly executed in the same prescribed manner as a will;
  • by burning, tearing or otherwise destroying the will by the testator or by someone in the presence and by the direction of the testator

The execution of a subsequent will or codicil is by far the most common method of revoking a will.

In fact, when a testamentary document is valid and contains a revocation clause , there is a very heavy onus on anyone attacking the will attempting to argue that the revocation clause was not intended to be operative. McCarthy v Fawcett ( 1945) 1 W.W.R. 70 ( B.C.C.A)

Drawing a line through the signature and adding the words  I hereby revoke this will was held to be of no legal effect in Bell v. Matthewman ( 1920) 49 O.L.R 364.

A letter properly attested by two witnesses and addressed to the bank manager who held the original will on deposit stating “ will you please destroy the will already made out was held to have effectively revoked the will in Re Spracklan ( 1938) 2 All E.R. 730.

With respect to the destruction of a will, there must be both the act of destruction as well as the intention to destroy the will and any symbolic destruction will not suffice. Partial tearing of the will which leaves the words legible does not necessarily show an intention to revoke. There must be such an injury with intent to revoke that it destroys the entirety of the will to have an effective revocation. Re Shafner ( 1956) 2 D.L.R. ( 2d) 593 ( N.S.C.A.)

The Common Law Presumption of Destruction

Very often in estate disputes the original or a will cannot be found and an attempt is made to probate a copy, giving rise to the legal issue as to whether the will had been destroyed or simply lost.

If an original duly executed will that was in the possession of the testator is not propounded upon death and the executor fails to prove that the original was not merely lost and not destroyed, then there is a common law presumption that is rebuttable by sufficient evidence that the will was destroyed by the testator, that the testator destroyed the will for the purpose of revoking it. Sigurdson v Sigurdson (1935) 4 DLR 529 ( S.C.C.)  and Kumar v Kumari ( 1993) BCJ No. 108.

The evidence necessary to rebut the presumption of revocation need not be such as to amount to a positive certainty , but only such as to produce moral conviction. Re Matt estate ( 1954) 11 WWR ( NS) 28 ( Man.C.A).

The Sigurdson case ibid stated that the evidence to rebut the presumption of revocation must be clear and convincing to satisfy the court that the will had in fact been lost and not destroyed by the testator with an intention of revoking the will.

Various Factors of Consideration by the Court Whether the Presumption Applies

Haider v Kalugin  2008 BCSC 930 enumerated some of the factors the court will consider in deciding whether the presumption of revocation applies, and if so, whether it has been rebutted:

  • whether the testator continued to have good relations with the named beneficiaries in the copy of the will up to the date of death;
  • whether the terms of the will were reasonable
  • the nature and character of the deceased in taking care of personal effects- ie orderly vs hoarding;
  • statements made by the testator to either confirm or contradict the terms of the will copy;
  • whether the deceased understood the consequences of having a will and the effects of an intestacy;
  • were personal papers stored carefully or haphazardly;

The presumption of revocation does not apply where the original will cannot be traced to the possession of the testator. Brimicombe v Brimicombe Estate  (2001) NSJ No. 157 (N.S.C.A). For example if the original was stored at the drafting lawyers office and the will was lost while there, the presumption would not apply.

SECTION 58  WESA

Section 58 of WESA, reads as follows:

58 (1) In this section, record includes data that

(a)   is recorded or stored electronically,

(b)   can be read by a person, and

(c)    is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a)   the testamentary intentions of a deceased person,

(b)   the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c)    the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a)   as the will or part of the will of the deceased person,

(b)   as a revocation, alteration or revival of a will of the deceased person, or

(c)    as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

Section 58 WESA is a dramatic change to the law of revocation given that even if the document attempting to revoke a will is defective, if the court finds that the intention of the testator was to revoke the will, then under Section 58 (3) the court can cure the defect so as to give legal effect to the intention of the testator.

The “curative” provisions of Section 58 was illustrated in Horton v Bruce 2017 BCSC 712 where the court remedied only the revocation clause and not the distributive clauses of a subsequent  draft will that had been signed by the testator but not witnessed by two witnesses in the presence of each other. The legal effect of the imposition of Section 58 (3) was to cause the deceased to die intestate.

Horton v. Bruce relied upon  a Supreme Court of Canada decision Bell Express Vu Limited Partnership v Rex 2002 SCC 42 for the authority to interpret Section 58 to give the courts the power to cure only a part of a document or a writing deemed to be a will, and not the entire document.

CONCLUSION

The effects of WESA will be dramatic upon the law of revocation of wills. Section 55 WESA abolished the revocation of a will by any marriage that takes place after March 31, 2014.

The effect of Section 58 WESA has yet to be recognized but the application of that section in the Horton v Bruce decision leads me to believe that Section 58 will be liberally applied to remedy any defective revocation if the court concludes that it was the intention of a testator to revoke a will but failed to do so in a  manner that the common law previously demanded.

What Happens When You Lose Your Will?

What happens when you lose your will? Many people, in fact, do. They might be hoarders or they might be very careful people but they don’t appreciate that that document that they signed many years ago and took home is perhaps the original of a very valid document that only takes effect upon a death. So it’s important to safeguard where the will is kept.

The main reason is that if the will is lost while in your possession and then you die, you are presumed to have revoked that will and that the will no longer exists. This is a rebuttable presumption and the court will be allowed to look at whether you referred to the will, whether you referred to the will to your general nature as to what type of person you were and to any other previous wills that you might have done in an attempt to see if the presumption can be rebutted. The most important thing to remember though is to safeguard your will.

Copy of Will Probated

Copy of Will Probated

Under certain circumstances a copy of a will rather than the original, may be admitted to probate as the last valid will of the deceased.

The competing claimants will typically  argue that there is a presumption of revocation when the original will cannot be produced.

There is more information on this topic under my  blog heading of lost wills.

In short reasons for judgement, Canada Trust v MacMillan 2016 BCSC 1909 sets out a situation where the court was satisfied by evidence that the will maker executed a last will that had become lost due to changes in the law firms that held the will. Evidence was also led that she was mentally capable  at the time the will was signed, as it was argues she had suffered from mental illness for much of her life.

Canada Trust v MacMillan 2016 BCSC 1909

APPLICATION by bank for pronouncement of force and validity of last will of deceased in solemn form.

Gray J., In Chambers:

1      I am prepared to make the order requested. I will just give some very brief reasons for judgment.
2      Canada Trust is seeking a series of orders. The most important is a pronouncement for the force and validity of the last will of Joan Margaret MacMillan (“Ms. MacMillan”) dated November 5, 2002, in solemn form.
3      Ms. MacMillan passed away in March 2014 at the age of about 81 years. She had an estate which is presently worth a little bit more than two million dollars.
4      There were really three areas of concern that were addressed. The first is that the original signed will is not available. However, there is evidence that Mr. Argue was the lawyer who prepared the will. He was a lawyer with the law firm Owen Bird at the time he did the initial work on the will, and a few days later he started working at the law firm Campney & Murphy, and he was a lawyer with that firm when the will was executed.
5      A wills notice was filed saying that the will was kept at the law firm Campney & Murphy, but that law firm ceased operations, and the will was not found in the vault.
6      Two copies of the will were found, one in the deceased’s personal documents, and the other with Canada Trust, which was involved in referring Ms. MacMillan to Mr. Argue for preparation of the will. There was also an email from Mr. Argue to the Canada Trust officer who had been involved, saying that the will had been executed.
7      On the basis of all this, I am satisfied that the will was executed in compliance with the Wills Act formalities, even though we do not have the original will itself. We have the copy. It is appropriate with the correction in the name of the cousin, to Dorothy C. Anderson (“Ms. Anderson”). The name originally provided was Dorothy T. Anderson, but that name was incorrect.
8      The will itself provided that the residue would be distributed equally between Ms. Anderson and James V. Bennett, or to the survivor. In fact, Ms. Anderson predeceased the will maker. So pursuant to the will, it would be Mr. Bennett who would receive the entire residue of the estate.
9      Mr. Bennett was not a relative of the will maker. He met her in connection with doing some private investigation work for her. After that, he spent some time assisting her with chores, assisting her around the home, and having some social interaction with her such as lunches and teas and so on.
10      There was a concern about the will maker’s capacity to make the will. Ms. MacMillan had a history of mental illness. She suffered bipolar disorder, with episodes of depression and episodes of manic behaviour. She had some hospitalizations over the course of her lifetime. However, at the time of giving instructions and the execution of the will, she satisfied Ms. Taylor of Canada Trust and the lawyer, Mr. Argue, that she had testamentary capacity. She knew the extent of her estate. She knew that she had no living parents or siblings or children.
11      There is also the evidence of Dr. Sloan, a geriatric physician, and Dr. Hurwitz, a neurologist and psychiatrist, based on their review of medical records, all suggesting that the will maker had testamentary capacity. I am satisfied that Ms. MacMillan had the necessary capacity to execute the will at the time she did so.
12      A concern was also raised about undue influence. I have read Mr. Bennett’s affidavit, and I have not seen any evidence that suggests that there was undue influence.
13      Having considered all these things, I will make the orders sought and I am happy to initial the approved form of order.

The Presumption of Revocation of A Lost Original Will

Presumption of Revocation of A Lost Original Will law is set out at paragraph 9 by Haider v Kalugin 2008 BCSC 930:

 

“The applicable law is not in dispute.  When an original will has been lost, mislaid or destroyed or is not available, an application may be made for an order admitting the will to probate by a copy, a completed draft, a reconstruction or evidence of its content:  British Columbia Probate and Estate Administration Manual, 2nd edition, 2007, s.5.61.

[9]                If a Will last known to be in custody of testator is not found at his death, the presumption is that the testator destroyed it with the intention of revoking it (“animo revocandi”).  However, that presumption may be rebutted by evidence, written or oral, of the facts.  The strength of the presumption will depend upon the character of the custody which the testator had over the Will:  Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (English C.A.).

[10]            In Sigurdson v. Sigurdson [1935] 2 D.L.R. 445 (S.C.C.), at paragraph 49, Davis J. said:

[49]      It needs very clear and convincing evidence to establish what is alleged to be a lost will.  . . .The person propounding such a will has a burden of proof that persists throughout the whole trial to satisfy the court at its conclusion that the will is in fact lost and was not destroyed by the testator with the intention of putting an end to it.  Each case of course turns upon its own facts but the principles respecting the well-settled presumption against the Will must be applied to the facts.

[11]            In Welch v. Phillips (1836) 1 Moo PC 299, at 302, referred to in Bobersky Estate (Re) [1954] A.J. No. 12 (Alta Dist. Crt.), at paragraph 6, the court said:

[6]        If a will traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by the deceased himself; and that presumption must have effect, unless there is good and sufficient reason to repel it.  It is a presumption founded on good sense, for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety and would not be either lost or stolen, and if, on the death of a maker, is not found in his usual repositories or else where he resides, it is in a high degree of probable that the deceased himself has purposely destroyed it.  But this presumption, like all others of fact, may be rebutted by others, which raises a higher degree of probability to the contrary.

[12]            As stated by MacKeigan, C.J.N.S. in McBurnie v. Patriquin [1975] N.S.J. No. 447, at paragraph 10:

[10]      I should emphasize that the burden on the person who is trying to rebut the presumption is a very heavy burden.

[13]            Some of the factors considered in determining whether the presumption has been overcome are:

·         whether the terms of the Will itself were reasonable:  Pigeon Estate v. Major, [1930] S.C.R. 252 (S.C.C.);

·         whether the testator continued to have good relationships with the beneficiaries in the copy of the Will up to the date of death:   Pigeon, supra;

·         where personal effects of the deceased were destroyed prior to the search for the Will being carried out:  Pigeon, supra;

·         the nature and character of the deceased in taking care of personal effects:  Pigeon, supra;

·         whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated:  MacBurnie v. Patriquin, supra; Anderson v. Kahan Estate [2006], B.C.J. No. 716 (B.C.S.C.);

·         statements made by the testator which confirm or contradict the terms of distribution set out in the will:  Bobersky Estate, supra, Anderson, supra, Holst Estate v. Holst [2001], B.C.J. No. 1560 (B.C.S.C.), Re Green Estate [2001], A.J. No. 1253 (Alta Q.B.);

·         whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers:  Bobersky Estate, supra, Brimicombe v. Brimicombe Estate [2000], N.S.J. No. 157 (N.S.C.A.);

·         whether there is evidence that the testator understood the consequences of not having a Will, and the effects of intestacy:  Bobersky Estate, supra;

·         whether the testator made statements to the effect that he had a will:  Bobersky Estate, supra

[14]            However, the presumption of revocation does not apply where the Will cannot be traced to the possession of the testator:  Brimicombe v. Brimicombe Estate, supra, at paragraph 7.”

Morton v Christian  2014 BCSC 1303 also recently reviewed the area of law and stated inter alia:

51]         In Haider there was no direct evidence that the testator ever had the original will in his possession, and the court refused to draw that inference. The presumption was held not to apply.

[52]         The presumption of revocation is based in part on a logical inference that a person of ordinary prudence would keep safe an original document as important as a will, and that failure to find such an important document after a person’s death is presumptive evidence that it was intentionally destroyed by that prudent person. It goes to both the physical act of destruction and the intention to destroy required by s. 14(1)(d).

 

[55]         As well, the presumption depends on the original being known to be possessed by the testator. To apply it here requires that a copy of a notarial will be treated as an original for the purpose of applying the presumption, and I have already found that not to be the case.

[56]         Finally, I am not satisfied that Mr. Christian did in fact destroy a copy, or all three copies, of his will. There is no direct evidence on the point, and his statements to Ms. Iverson and Ms. Buchanan are not admissible to prove that fact.

[57]         If I had found the contrary, tearing a copy of a notarial will, knowing that the original is safely lodged with a notary, appears to me to be no more effective than the “symbolical” steps referred to in Cheese v. Lovejoy (1877), 2 P.D. 251 (C.A.):

It is quite clear that a symbolical burning will not do, a symbolical tearing will not do, nor will a symbolical destruction. There must be the act as well as the intention. As it was put by Dr. Deane in the court below, “All the destroying in the world without the intention will not revoke a will, nor all the intention in the world without destroying: there must be the two.

Unsigned Copy of Lost Will Admitted Into Probate

Is an unsigned copy of a lost will admittable?

The law is clear: If the original will is last known to be in the will maker’s possession and cannot be found after death after an extensive search,  then the law presumes that the testator destroyed the will in order to revoke the will. This presumption can be rebutted by written or oral evidence. The Courts have held that it is a heavy burden to rebut and that in this case, the attackers failed to prove she revoked the will due to her dementia, and admitted her unsigned will into probate.

In Polischuk Estate v Perry 2014 BCSC 1089, the petitioner sought a declaration that the deceased’s last will had been lost and that an order granting probate of an unsigned copy of the will should be admitted to probate.

A lawyer testified that ” based on my 30 years of acting as her legal representative, I firmly believe that if Nettie ( the deceased) was of sound mind, she would never revoke her will by destroying it”.

No one was ever told that she had  destroyed it or intended to do so. The deceased suffered from dementia for some years before her death.

An extensive search failed to find the original will that was last in the possession of the deceased, but an unsigned copy of the will was found that reflected the instructions given to the will drafter.

The Court concluded that it had no difficulty determining that the deceased did in fact sign the original will in question, that she was the last person to have possession of it, that it should have ben in her safety deposit box, but for some reason, perhaps her dementia, it was not.

The Court then examined the burden of proof required to rebut the presumption that the deceased revoked the original will, found that those attacking the unsigned copy of the will being admitted into probate did not prove on the balance of probabilities that the will was revoked while the deceased was alive a sound mind.

The law

[60]     The law is clear: if a will is last known to be in the testator’s possession and cannot be found, the law presumes the testator destroyed the will in order to revoke the will. However, the presumption can be rebutted by written or oral evidence.

[61]     In Haider v. Kalugin, 2008 BCSC 930 at paras. 9-13 Wilson J. helpfully summarized the law applicable to this issue:

  1. The applicable law is not in dispute. When an original will has been lost, mislaid or destroyed or is not available, an application may be made for an order admitting the will to probate by a copy, a completed draft, a reconstruction or evidence of its content: British Columbia Probate and Estate Administration Manual, 2nd edition, 2007, s.5.61.
  2. If a Will last known to be in custody of testator is not found at his death, the presumption is that the testator destroyed it with the intention of revoking it (“animo revocandi”). However, that presumption may be rebutted by evidence, written or oral, of the facts. The strength of the presumption will depend upon the character of the custody which the testator had over the Will: Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (Eng. C.A.).

10.       In Sigurdson v. Sigurdson, [1935] 2 D.L.R. 445 (Man. C.A.), at paragraph 49, Davis J.
said:

[49]      It needs very clear and convincing evidence to establish what is alleged to be a lost will… .The person propounding such a will has a burden of proof that persists throughout the whole trial to satisfy the court at its conclusion that the will is in fact lost and was not destroyed by the testator with the intention of putting an end to it. Each case of course turns upon its own facts but the principles respecting the well-settled presumption against the Will must be applied to the facts.

11.       In Welch v. Phillips (1836), 1 Moo. P.C. 299 (England P.C.), at 302 , referred to in
Bohersky, Re, [1954] A.J. No. 12 (Alta. Dist. Ct.), at paragraph 6, the court said:

[6]       If a will traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by the deceased himself; and that presumption must have effect, unless there is good and sufficient reason to repel it. It is a presumption founded on good sense, for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety and would not be either lost or stolen, and if, on the death of a maker, is not found in his usual repositories or else where he resides, it is in a high degree of probable that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others, which raises a higher degree of probability to the contrary.

12.       As stated by MacKeigan, C.J.N.S. in MacBurnie v. Patriquin, [1975] N.S.J. No. 447
(N.S. C.A.), at paragraph 10:

[10] I should emphasize that the burden on the person who is trying to rebut the presumption is a very heavy burden.

13.       Some of the factors considered in determining whether the presumption has been
overcome are:

  • whether the terms of the Will itself were reasonable: Lefebvre v. Major, [1930] S.C.R. 252 (S.C.C.) [hereinafter Pigeon];
  • whether the testator continued to have good relationships with the beneficiaries in the copy of the Will up to the date of death: Pigeon, supra;
  • where personal effects of the deceased were destroyed prior to the search for the Will being carried out: Pigeon, supra;
  • the nature and character of the deceased in taking care of personal effects: Pigeon, supra
  • whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated: MacBurnie v. Patriquin, supra; Andersson v. Khan Estate, [2006] B.CJ. No. 716 (B.C. S.C.);
  • statements made by the testator which confirm or contradict the terms of distribution set out in the will: Bohersky Estate, supra, Andersson, supra, Hoist Estate v. Hoist, [2001] B.CJ. No. 1560 (B.C. S.C.), Green Estate, Re, [2001] A.J. No. 1253 (Alta. Q.B.);
  • whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers: Bohersky Estate, supra, Brimicombe v. Brimicombe Estate, [2000] N.S.J. No. 157 (N.S. C.A.);
  • whether there is evidence that the testator understood the consequences of not having a Will, and the effects of intestacy: Bobersky Estate, supra;
  • whether the testator made statements to the effect that he had a will: Bobersky Estate, supra

[62]     A different situation arises when a testator becomes mentally incapable/unstable after executing the will.

[63]     In this case, the evidence shows that Nettie was mentally stable on August 31,2004, but as of February 9,2010, she was declared to be mentally unable to manage her financial and legal affairs due to Alzheimer’s disease. We do not know at what exact point between these two dates Nettie became unable to manage her affairs due to her cognitive impairment.

[64]     InReBroome, [1961] MJ. No. 51 (C.A.), 29 D.L.R. (2d) 631 atp.633 [ReBroome], Freedman, J.A. said:

It seems to me that fundamentally this case turns on the question of onus of proof. No one saw the testator destroy his will. In fact it may never have been destroyed. It has simply not been found after very extensive searches therefor. In such circumstances – leaving aside for the moment the question of insanity – there is a prima facie presumption that the testator destroyed the will animo revocandi. Such presumption, however, may be rebutted by evidence, which, however, must be clear and satisfactory: 34 Hals. 2   ed., p. 87. The intervention of insanity after execution of the will however, creates a different situation. That an insane person lacks the legal capacity to revoke his will is unquestionable. If Reuben Broome destroyed his will while insane such destruction would not constitute revocation of the will. On that both counsel agree. But since there is no evidence as to when he destroyed his will – assuming he did so -there is a sharp divergence between counsel as to what presumptions apply and to who must bear the burden of proof.

[Emphasis added.]

[65]     And continuing at p. 634, Freedman, J.A said :

The rule places on the party alleging revocation the burden of showing that the destruction occurred while the testator was of sound mind.

[66]    The preceding law establishes that the burden of proof is, in most circumstances, on the party asserting that the will was in fact lost and not destroyed. Re Broome, however, notes that the burden of proof shifts in the circumstance where a person becomes mentally incapable/unstable. When that situation arises, the evidentiary burden shifts to the party alleging that the testator destroyed the will to prove that the destruction occurred while the testator had capacity.

[67]     Since hearing submissions on this application, I have been directed to Yarmie Estate (Re), 2008 SKQB 74 [Yarmie]. In that case, the applicant grandson of the deceased applied to prove that an unsigned copy of the will was his grandmother’s last will and testament. No executed original was ever located, and the executed will was last in the deceased’s possession. The presumption that the deceased destroyed the will applied. As no evidence before the Court rebutted that presumption, the Court refused to admit the will to probate.

[68]     The difference between the facts in Yarmie and the facts in the case before me is that after executing the 2004 will, Nettie became unable to manage her own financial and legal affairs. That fact shifted the burden of proof to the nephews to prove on a balance of probabilities that the will was destroyed and revoked when Nettie was of sound mind.

[69]     In this case, the nephews cannot discharge that burden.

[70]     The nephews cannot prove when Nettie became mentally unstable. All they can say is that she would have crossed the line between being mentally sound and being unable to manage her affairs at some point after August 31, 2004 and before February 8, 2010. Some evidence, albeit somewhat questionable from statements by Nettie to Jessie Kooner before the February 8, 2010 declaration, demonstrates that she suffered from Alzheimer’s disease for approximately two years. Moreover, absolutely no evidence demonstrates that Nettie destroyed the 2004 Will – intentionally or otherwise. Based on her mental state at the time, she simply could have lost the 2004 Will.

[71]     In this case, while the evidentiary burden shifted to the nephews, in any event, the petitioner could still discharge his burden to demonstrate that Nettie did not intend to revoke the 2004 Will.

[72]     Referring to the factors Heider lists at para. 13, the following evidence is relevant to demonstrate that Nettie did not intend to revoke her 2004 Will:

a)          The 2004 Will’s terms were reasonable. In that will, she maintained her wishes to make charitable donations to organizations she considered worthy of bequests and that the bulk of her estate was to go to her sister Mary. Nettie began to reside with Mary in 2009, and Mary had been the major beneficiary in previous wills, and Nettie was always close with her. Nettie also provided for her close friends, Joanne Grunerud and Norah Smith, who she considered to be “like family” and for her long-term lawyer in lieu of charging fees in administering her estate. These bequests are also consistent with her previous will’s bequests, except for eliminating shares in her estate to her nephews and nieces. Regarding the latter, evidence demonstrates that Nettie experienced a “falling out” with her twin brother’s children. In fact, she expressed this sentiment to Steven Wong and Ms. Grunerud, and I find such evidence to be a credible explanation for Nettie excluding her nephews and nieces. In making such a finding I appreciate the nephews have deposed to not being aware of any “falling out”, but the likelihood of such a situation is reasonable.

b)         Nettie did not place the 2004 Will in any of the safety deposit boxes to which she had access. No evidence explains why she did not place the 2004 Will in a safety deposit box as she had.

Dealing with Lost Wills

Dealing with Lost Wills - Disinherited

An update to this article is that since the introduction of WESA on April 1, 2014, I anticipate that the courts will be more willing to allow copies of wills as proof of the testator’s intention to more easily admissible into probate.

Many estate practitioners will face the situation where the original will cannot be located following the death of the testator.  There are many variations on the fact patterns surrounding such lost wills and any number of reasons the original will cannot be located.

At common law, where a validly executed will is shown to have last been in the custody of the testator, and that will has not been located despite every effort, then, in the absence of evidence to the contrary, a presumption of revocation by the testator arises.  In other words, the law presumes the testator has destroyed the will with the intention of revoking it. This presumption also applies to the copies i.e. any executed copies are deemed to have been revoked as well.

In this paper we will examine this presumption of law and review some of the cases where evidence to the contrary has been offered to rebut the presumption. Most of the cases focus on whether or not the presumption has been rebutted on the facts of the particular case.

The Presumption of Revocation – Leading Cases

1. Sugden V. Lord St. Leonards (1876) 1 P.D. 154 (C.A.).

In this leading case, Lord St. Leonard’s will could not be found following his death.  His daughter, however, had read the will so many times that she was able to reproduce almost all of its provisions verbatim.  In this case, the court was satisfied with the honesty of the witness and her ability to recall.   Further, they were convinced the daughter had accurately related the testator’s intentions.  The court thus admitted into probate the daughter’s memorandum of the contents of her father’s will.

In terms of the legal presumption the court further held it would consider if there other explanations for inability to locate the will, that is explanations other than the intentional destruction by the testator.

The court further held that a testator’s declarations as to the contents of the will were admissible to prove those contents.  The court held the declarations were admissible whether they be made before or after the will was signed and whether the declarations be oral or written.

As to the strength of the presumption of revocation, the court said this would depend on the character of the custody the testator had over his will.

In this case, the court found Lord St. Leonard was a person who regarded his will as of the utmost importance.  They found that since there was no evidence that he deposited the will with others for safekeeping, he likely would have kept it in his possession. The court concluded that it was “obvious that the will may have been inadvertently burned when the testator’s personal effects were destroyed after his death”.

The court opined “it seems utterly impossible that, under the circumstances, such a man as Lord St. Leonard’s would voluntarily destroyed his will, whether for the purpose of revoking it or making another, or for any other purpose  that could be considered”.

  1. Lefebvre v. Major(1930) S.C.R. 253

The Supreme Court of Canada followed Sugden v. St. Leonard sin admitting into probate a copy of a will.  In this case, the deceased’s banker had sent him his will, however, upon his death, it could not be located. A few weeks before his death, the deceased had told a close friend “his papers were fixed up so that everything went to his sister after his death.”

As in the Sugden case, the court found that the deceased regarded his will of the utmost importance.  The court held that the testator was simple man who was affectionate to his sister and that he would not have intentionally destroyed his will.  Again, as in Sugden, the court speculated the will had been “inadvertently burned” with the rest of his personal effects.

3. A different approach was taken in another leading Canadian case Sigurdson v. Sigurdson (1935) 4 D.L.R. 529.

Sigurdson had taken his original will home from his lawyer’s office. All of his family read the will and it was put in a small locked metal box which Sigurdson kept.   He also kept an unlocked wooden box in which he had other personal papers.  From time to time, Sigurdson would move papers from one box to the other. Just prior to his death he told a son by his first marriage that he did not have a will because everything would divided up “according to law”.

In the subsequent litigation, the court found Sigurdson to be a person who knew exactly what papers he had in his metal box.  The trial judge concluded that he revoked his will so as to allow his wife and his children from both marriages to share by operation of law.  The Supreme Court of Canada upheld the trial decision which applied the presumption of revocation and refused to admit into probate a copy of the will.

In the Supreme Court decision, Davis J. stated that “it needs to be clear and convincing evidence to establish what is alleged to be a lost will. The person propounding such a will has a burden of proof that persists throughout the whole trial to satisfy the court at the conclusion that he will is in fact lost and that it was not destroyed by the testator with the intention of putting it to an end.”

For other decisions where the court has found the presumption was not rebutted see:  Re Wagenhoffer 22 E.T.R. 60 ( Sask. C.A.), Re Wellwood (1982) 19 Alta.L.R. (2d) 268,Kennedy v. Peikoff (1966) 56 W.W.R. 381 ,Re Singh (1912) 1 W.W.R. 472, and Re Perry (1925),56 O.L.R.278)

Review of Cases where the Courts find the Presumption to be Rebutted

A review of the “lost will” cases could lead one to conclude that the courts are very open to finding the presumption has been rebutted.  In spite of the legal presumption, the courts seem to be very reluctant to find that a testator has deliberately revoked a will by destroying it.

There are many cases where, based on evidence which is relatively weak, the courts permit a copy of a will or other sufficient evidence of the will to be admitted into probate.

1.  A leading British Columbia case is Unwin v. Unwin (1914) 6 W.W.R. 1186.

Mr. Unwin had prepared a will leaving everything to his wife.  He placed the will in an envelope and gave it to his wife to put in a drawer with his other papers.  After his death the will could not be located.

Mrs. Unwin testified that she and the deceased had a harmonious marriage and that the deceased never expressed any intention to revoke the will. The court found that Mr. Unwin had no motive to make another will. The Court believed the testimony of the wife and admitted a copy of the will into probate.

The court held that it was entitled to consider the relationship between the deceased and his wife, also his words and actions subsequent to the execution of the will, and any circumstances which may tend to support or rebut the presumption of revocation.

In rebutting the presumption the court relied on Sugden v. St. Leonard’s where Chief Justice Cockburn stated “The presumption will be more or less strong according to the character of the custody which the testator kept over the will”.

2.Both Unwin and Unwin  and Sugden v. St. Leonard’s were followed in Brown v. Woolley  (1959) 29 W.W.R. 425.  In this case a B.C court admitted into probate a carbon copy of the executed after the original was lost. The court based its finding on the uncorroborated evidence of an interested party who the court, nevertheless, found to be a reliable witness.

In all three cases the court found the presumption of revocation to be rebutted based on evidence by “by trustworthy witnesses” as to the deceased’s declarations made shortly before death as to the dispositions made in his will.

3.  Holst Estate v. Holst39 E.T.R. (2d) 218.  This is a recent B.C. case that typifies the kind evidence required to rebut the presumption of revocation.

In 1988 the deceased and his son were the owners, as tenants in common, of a parcel of land. The father had given the son’s share to him as a gift.  Six years later the father wrote a will dividing his estate equally amongst his children. He later realized that, in effect, he had already given this one son an inheritance equal to the shares of the estate left to his other children.  The father thus executed a codicil to revoke this one son as a beneficiary under his will. After his death this codicil could not be found.

The court found that the presumption had been rebutted because:

a)     eight months before his death the deceased had told his lawyer that he had executed such a codicil;

b)     evidence showed that the codicil could have been lost;

c)      it was not the deceased’s character to have intentionally destroyed his codicil;

d)     evidence did not support the contention that the codicil was intentionally destroyed by the deceased;

e)     the deceased had numerous documents throughout the house that were not organized;

 

1. Dementia

A testator must have sufficient mental capacity to be able to revoke a will. Doubtless many seniors “squirrel away” their wills, and then forget where they have put them.  Thus a will lost by a testator who ultimately becomes incapable, creates a legal dilemma.  Often it  is not clear when the will was lost in relation to the deceased’s loss of legal capacity.  Did the person intend to revoke the will?  Did that person have legal capacity at that time?

In re Broome (1961) 35 W.W.R. 590, the Manitoba Court of Appeal held that the burden of showing that the will was destroyed before the onset of insanity lies on the party asserting revocation.

This case was followed in the British Columbia of Eaton v. Heyman (1946) 63 B.C. R. 62

2. Suspicious Circumstances

The presumption of revocation may be rebutted if it can be shown that a person who stands to benefit from the loss of the will has fraudulently destroyed it.

In Re Weeks,(1972) 3 O.R. 422, the court refused to make an inference of fraudulent destruction in spite of what the judge characterized as “very suspicious circumstances”. Instead the judge applied the presumption of revocation and declared an intestacy.

In this case, the evidence showed that the deceased’s wife had been badgering him to amend his will and leave a larger share to her. She alone had access to the locked drawer where the will was kept.  She stood to inherit much more if the will were not found and he died intestate.  Nevertheless the court applied the presumption of revocation and found the will was presumed to have been destroyed by the deceased and thus revoked.

In Re Perry [1925] 1 D.L.R. 930 (C.A.), the court refused to allow a copy of a lost will into probate and declared an intestacy.

Justice Middleton  stated  “… when a testator has possession of his testamentary instrument, and it is not forthcoming at the time of his death, the presumption is that he destroyed it. The presumption is against fraudulent abstraction either before or after death, but circumstances which render the abstraction possible must be taken into account in weighing the evidence.”.

3. Accidental Loss or Destruction

In Allan v. Morrison, [1900] A.C. 604 the Privy Council upheld the decision of the New Zealand Court of Appeal who, in rendering their appeal judgment, had said as follows:

“The hypothesis of accidental loss or destruction is unreasonable. There is a presumption against the hypothesis of fraudulent abstraction. There is a reasonable possibility that the deceased destroyed the will himself. In order to find for the will we must be morally satisfied that it was not destroyed by the testator animo revocandi.”(with an intention to revoke)

Requirement for Proof of the Contents and the Will’s Execution

Even once the presumption of revocation is rebutted, probate will still only be granted if there is sufficient proof of both the contents of the lost will and its due execution.

The contents of the will may be established on secondary evidence such as the solicitor’s notes, or a copy, or any other such written evidence.   For example, in re Dreger 13 E.T.R. 212 a carbon copy of the will was admitted into probate.

Secondary evidence of the contents of a will may include:

1)     the solicitor’s notes, or a typed copy or carbon copy;

2)     oral testimony of someone having direct knowledge of the contents, such as the solicitor who prepared the will;

3)     pre-testamentary or post-testamentary statements of the testator, whether written or oral;

In weighing such evidence, the court will carefully scrutinize the evidence of anyone who stands to benefit from the contents proposed.

The Presumption applies only if the will was in the Possession of the Testator.

In Re Flaman Estate (1997) 18 E.T.R. 305, the court confirmed that the presumption to intentionally revoke a will is only established when the will is last traced to the possession of the testator. In this case the deceased was in a nursing home and thus  the will’s possession could not be last traced to him.

Conclusion

In summary, the caselaw currently provides that where a missing will was last known to be in the possession of the testator before his death, the presumption is that the testator destroyed the will with the intention of revoking it.

This presumption may be rebutted by the following evidence:

1)     words or actions of the testator either before or after the execution of the will; or

2)     a codicil that refers to the will; or

3)     evidence of the character of the testator and his treatment towards the beneficiaries during his life; or

4)     statements made by the testator about the provisions made to beneficiaries.

Even if the existence of will is proven and the presumption rebutted, two further matters must still be established–the contents of the will and its proper execution.  Only once these elements are proven will the court admit a copy of the will, or other sufficient evidence, in place of the original will.

Like many other areas of estate law, the law purports to be clear, however its application is at times apparently inconsistent. It seems the courts are reluctant to declare an intestacy, and will often go to some lengths to find sufficient evidence to rebut the presumption of revocation.