Criminal Theft and Destruction of Wills
Our blog has previously discussed the importance of original testamentary documents at length. Typically, an original will is required in order to apply for a Certificate of Appointment of Estate Trustee With a Will. If an original will cannot be located, it may be presumed that it was physically destroyed, and therefore revoked, by the testator. Alternatively, a copy of a will may be admitted to probate upon the filing of a lost will application. However, this remedy is not a fix-all that can be used in all situations in which an original will cannot be located and, even when successful, will result in additional legal fees and delays in the administration of the estate.
Certain provisions within the Criminal Code of Canada criminalize the theft and destruction of another person’s testamentary instruments in recognition of the importance of these documents. At Section 2, the Criminal Code defines a “testamentary instrument” as including “any will, codicil or other testamentary writing or appointment, during the life of the testator whose testamentary disposition it purports to be and after his death, whether it relates to real or personal property or to both”.
Typically, the theft of personal property valued at less than $5,000.00 is a summary offence and can result in up to two years of imprisonment. Where stolen property meets the definition of a testamentary instrument, the seriousness of the crime is elevated to an indictable offence, punishable by up to ten years in prison (section 334(a) of the Criminal Code). The possession of a stolen testamentary instrument is also a crime in Canada. The Criminal Code prohibits possession of property obtained by a criminal act and specifically identifies the possession of a stolen testamentary instrument as an indictable offence with a penalty of up to ten years of prison (sections 354, 355(a)).
Similarly, the destruction, concealment, cancellation, or obliteration of a testamentary instrument “for a fraudulent purpose” is an indictable offence and a conviction may result in up to ten years of imprisonment (section 340). The destruction of a testamentary instrument as a result of an act of mischief is also an indictable offence , punishable by up to ten years in prison (section 430(3)).
The provisions of the Criminal Code outlined above illustrate the significance of the original copy of a last wills and testaments, codicils, and other testamentary documents in Canada and the lengths that the law will go to in protecting the sanctity of these original documents that are typically required in order to administer an estate in the way intended by the testator.
Thank you for reading.