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:
- provide proof of the due execution of the will;
- provide proof of the contents of the will;
- 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;
- 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.