The recent Court of Appeal of Alberta decision in Goold Estate v. Ashton, 2017 ABCA 295 (CanLII) addresses the issues of presumptions and the burden of proof surrounding lost wills and the presumption of revocation.

There, the deceased died leaving a holograph will.    The holograph will revoked a prior formal will. However, the holograph will could not be found following the deceased’s death.

The court referred to the presumption of revocation: a will will be presumed to be revoked by destruction where the original cannot be located after the death of the deceased.  The party relying on the presumption of revocation has the burden of proving (a) possession and control of the will by the testator; (b) continuing capacity to revoke the will; and (c) the absence of the will after death.

As to the second point, in order to rely on the presumption of revocation, the party relying on it must show that the testator had capacity to make or revoke a will.  On the evidence, it was not clear as to when the will was revoked and when the testator lost capacity.  There was evidence that the testator did not have capacity for a significant portion of the time during which the holograph will was under the testator’s control. The party relying on the presumption was therefore not able to discharge the burden on her to establish that the testator had capacity at the time of the revocation of the will. The Court of Appeal upheld this analysis.

Once the presumption is found to apply, the presumption can be rebutted by showing, on a balance of probabilities, that the testator did not destroy the will or intend to revoke it. The judge below found that, even if the presumption did apply, the presumption had been rebutted. The court considered:

• whether the terms of the will were reasonable;
• whether the testator continued to have a good relationship with the beneficiaries of the lost will;
• whether personal effects of the deceased were destroyed prior to the search for the lost will being carried out;
• the nature and character of the deceased in taking care of personal effects;
• whether there were any dispositions of property that support or contradict the terms of the lost will;
• statements made by the testator which confirm or contradict the terms of the lost will;
• whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store them;
• whether the testator understood the consequence of not having a will; and
• whether the testator made statements to the effect that she had a will.

The judge below found that there was sufficient evidence to establish, on a balance of probabilities, the absence of an intention to revoke the holograph will.  The Court of Appeal would not interfere with these findings of fact.

For other discussions of lost wills, see What Does One Do When There’s a Lost or Defective Will? and Saving Lost Wills?

Thank you for reading. I presume that you will have a great weekend. Don’t rebut my presumption.

Paul Trudelle