What Does One Do When There’s a Lost or Defective Will?
As long ago stated by the Supreme Court of Canada in Lefebvre v. Major, where a will is traced
to the possession of the testator and cannot be found at the date of death, there is a
presumption that it was destroyed by the testator with the intention of revoking it. To overcome
this presumption, a person would need to apply to the court seeking to prove that the
will ought to be declared to be the last valid testamentary document of the testator.
Sorkos v. Cowderoy cites the following test that a party seeking to prove a lost will bears the
onus of satisfying on a balance of probabilities:
(a) due execution of the will;
(b) particulars tracing the possession of the will to the date of death, and afterwards if the Will was lost after death;
(c) rebuttal of the presumption that the will was destroyed by the testator with the intention of revoking it; and
(d) proof of contents of the lost will.
Often, just a photocopy of a will is located after a person’s death, absent the accompanying
affidavit of execution. Rule 74.04(1)(c) of the Rules of Civil Procedure requires an executor to
submit an affidavit of execution of the will (and of every codicil, where applicable) or, when one
does not exist and neither witness can be found, provide “such other evidence of due execution
as the court may require.” What would satisfy a court in this circumstance, as evidenced in the
Re Turner Estate decision, is an affidavit from one of the witnesses deposing that the two
witnesses were both present for the execution of the testamentary instrument, and that they
signed as witnesses in the presence of the testator and in the presence of each other.
Another way to cure the defect is if an original codicil exists, since the will can be republished by
virtue of such codicil. Re Turner Estate confirms that in order to republish a will, a codicil need
only contain some reference to the will. The codicil need not expressly confirm the will. This is
useful, as it can provide a fairly simple way to fix the problem, which will ensure that a person’s
testamentary wishes are given effect.
For a prior related blog on this topic, click here. Thanks for reading and have a great weekend!