Presumption of Revocation of Lost Will Rebutted

In Re Galloway Estate 2023 BCSC 1204 the presumption of revocation of a lost will was rebutted and a copy of the deceased’s will was admitted to probate.

Because the safe keeping of the last will was the fault of the testator, each of the parties were awarded special costs.

The presumption of revocation was summarized in Morton v. Christian, 2014 BCSC 1303

[50] The defendants rely on a presumption of revocation, which was succinctly described by A.F. Wilson J. in Haider v. Kalugin, 2008 BCSC 930 at para. 9:
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 on the character of the custody which the testator had over the Will: Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (English C.A.).

[51] In Haider there was no direct evidence that the testator ever had the original will in his possession, and the court refused to draw that inference. The presumption was held not to apply.

[52] The presumption of revocation is based in part on a logical inference that a person of ordinary prudence would keep safe an original document as important as a will, and that failure to find such an important document after a person’s death is presumptive evidence that it was intentionally destroyed by that prudent person. It goes to both the physical act of destruction and the intention to destroy …

In Haider v Kalugin 2008 BCSC 930 the Court identified the following as factors that might be considered in determining whether the presumption is overcome such that a copy should be admitted into probate:

• whether the terms of the will are reasonable;
• whether the deceased continued to have good relationships with the beneficiaries under the will up to the date of death;
• whether personal effects of the deceased were destroyed prior to the search for the will being carried out;
• the nature and character of the deceased in terms of taking care of their personal effects;
• whether there were any dispositions of property that support or contradict the terms of the will;
• statements made by the testator confirming or contradicting the terms of distribution set out in the will;
• whether the deceased was of the character to store valuable papers and whether the deceased had a safe place to store papers;
• whether there is evidence that the deceased understood the consequences of not having a will, and the effect of an intestacy; and
• whether the deceased made statements indicating the deceased had a will.
While the listed considerations may be helpful, all of the relevant facts in a case must be considered. The list is non-exhaustive.

The court in Galloway found that it did not make sense for the testator to intentionally destroy the will as on an intestacy a person he was known to despise would have inherited.

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