The deliberate destruction of material evidence occasionally occurs in estate litigation. The technical term is spoliation.
What does seem to occur on a somewhat regular basis in estate disputes is the disappearance of previous wills, and other relevant documents that may pertain to a death that occurs years later.
Proving that the evidence was deliberately destroyed can of course be very difficult.
The BC Court of Appeal in GEA Refrigeration Canada Inc. v Chang 2020 BCCS 361 , upheld the trial judge’s decision that the defendant’s decision to destroy his computer hard drives was motivated by his knowledge that the information on them would adversely affect his case.
The court upheld the trial judge’s entitlement to draw an adverse inference from the deliberate destruction of evidence if certain conditions are satisfied:
The Supreme Court of Canada decision, St. Louis v. The Queen( 1896) 25 SCR 649 stands for the proposition that sporulation in law does not occur merely because evidence has been destroyed. It occurs where a party has intentionally destroyed evidence relevant to ongoing, or contemplated litigation in circumstances where reasonable inference can be drawn that the evidence was destroyed to affect the litigation.
Once this is demonstrated a presumption arises that the evidence would have been unfavorable to the party destroying it.
That presumption is rebuttable by other evidence through which the alleged spoil later proves that his or her actions, although intentional, were not aimed at affecting the litigation, or through which the party either proves his or her case or repels the case against him or her.
See also McDougall v . Black & Decker Canada Inc., 2008 ABCA 353