[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.