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the unsigned copy of the will being admitted into probate did not prove on the balance of probabilities that the will was revoked while the deceased was alive a sound mind.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.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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