When proving a lost Will, there is a rebuttable presumption that the testator revoked their Will whenever the original Will can be traced to having last been in the possession of the testator, and when the original Will cannot be located after the testator’s death.  

Therefore, in order to prove a lost Will, we are guided by the test set out in Sorkos v Cowderoy.  

To satisfy this test, one must demonstrate:  

• 1.    Due execution of the Will;
• 2.    Particulars tracing possession of the Will to the date of death and afterwards if the Will was lost after death;
• 3.    Rebuttal of the presumption that the Will was destroyed by the testator with the intention of revoking it; and
• 4.    Proof of the contents of the lost Will.

Then, in order to rebut the presumption that the testator revoked their Will, Levitz v Hillel Lodge Long Term Care Foundation outlines two elements that must be established:   

• 1.         That the Will was not destroyed; or
• 2.         That there was no intention by the testator to revoke it.

These two elements must be proved on a balance of probabilities and can be established through the presentation of relevant affidavit evidence.  

The court has held the following factors as relevant when considering the evidence:  

• 1.    Whether the terms of the Will are reasonable;
• 2.    The testator’s relationship with the beneficiary;
• 3.    Whether the testator’s personal effects were destroyed prior to the search for the Will being carried out;
• 4.    The testator’s nature and character in taking care of their personal effects;
• 5.    Whether there were any dispositions of property during the testator’s lifetime which confirm or contradict the terms of the copy of the Will sought to be probated;
• 6.    Statements made by the testator which confirm or contradict the terms of distribution set out in the Will;
• 7.    Whether the testator was of the character to store valuable papers, and whether they had a safe place to store the papers;
• 8.    Whether there is evidence that the testator understood the consequences of not having a Will and the effects of an intestacy; and
• 9.    Whether the testator made statements to the effect that they had a Will (Goold Estate (Re), 2016 ABQB 303).

As you can see, proving a lost Will can be an onerous endeavour and one that can cause significant costs to the parties involved. The best way to avoid this is by maintaining open lines of communication with your loved ones regarding their testamentary intentions and the location and storage of their testamentary documents.

If you do find yourself in the position of attempting to locate a missing Will, check out our previous blog post on Will registries. This can be a good place to search for a missing Will, prior to attempting to prove one you’ve deemed lost. And, of course, you can always feel free to reach out to me directly. 

Enjoy your day, 
Suzana & Geoffrey Sculthorpe