In Jorsvik Estate, Re 2011 BCSC 528 ,after the testatrix’s death, her daughter found her torn up will at the care center where her step father had resided for the previous several years.
The will was challenged on the basis that because it was found torn up, that there be a presumption that the testatrix intended to revoke it.
If the will is revoked, then the testatrix died intestate, and her sister inherited.
The court found that since the will had not been found amongst the deceased papers, or in the place it might normally be expected to be found, that therefore the presumption that she destroyed the will did not arise.
The court was most persuaded by evidence that the testatrix had, the day before she died, spoke to lawyer about changing her will.
This evidence supported the inference that she had a will that she was intending to change.
The court found that the testatrix did not destroy her will with an intention of revoking it, and thus admitted the will to probate.
Accordingly, the named heirs in the will inherited.
Disinherited.com cautions that there is a presumption in law that can arise when a will is lost or found destroyed, that the testator intended to revoke it, and thus that will no longer exists.
The presumption of revocation, if it does arise, is rebuttable by evidence to the contrary.
Thus it is very important for testator’s to keep their original wills is a safe place such as a safety deposit box, and to register the date and location of the will, with the director of vital statistics.