Tag: defective will
When a testator’s Last Will and Testament cannot be located upon death, there is a presumption that the Will was destroyed by the testator with the intention to revoke it. The recent decision of Honourable Justice Robyn M. Ryan Bell in Levitz v Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253, sets out the factors the Court will consider when a party seeks to rebut the presumption of revocation.
What is the Burden of Proof?
In Sorkos v Cowderoy,  O.J. No. 3652, the Court of Appeal of Ontario held that a party who seeks to prove a lost Will bears the onus to:
- prove due execution of the Will;
- provide particulars tracing possession of the Will to the date of the testator’s death;
- provide proof of the contents of the Will; and
- rebut the presumption that the Will was destroyed by the testator with the intention to revoke it.
With respect to the final factor, Justice Bell considered the recent decision in Goold Estate. The decision of the Alberta Court of Queen’s Bench in Goold Estate v Ashton, 2016 ABQB 303, which was recently upheld by the Alberta Court of Appeal, identified the following factors as being relevant to the Court’s consideration of whether the presumption has been rebutted:
- the reasonableness of the terms of the Will;
- the relationship of the testator to the beneficiary;
- whether the testator’s personal effects were destroyed prior to the search for the Will;
- the nature and character of the testator in taking care of his or her personal effects;
- any dispositions of property that support or contradict the terms of the lost Will;
- statements made by the testator that confirmed or contradicted 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.
Application of the Factors in Levitz
In Levitz, the Deceased made a Will that made a specific bequest of a candelabra to Hillel Lodge Long Term Care Centre and left the residue of her Estate to Hill Lodge Long Term Care Foundation. Upon her death, the original Will was not located. The Deceased’s next-of-kin took the position that there was insufficient evidence to rebut the presumption of revocation on a balance of probabilities.
The Court cited the factors as set out in Goold Estate, and went on to apply them to the evidence before it. The Court held that there was sufficient evidence to establish, on a balance of probabilities, that the Deceased did not intend to revoke her Will.
There was no dispute that the terms of the Will were reasonable. The Deceased’s friend attested that the Deceased had referred to Hillel as the sole beneficiary of her Estate in the month prior to her death. There was evidence that the Deceased had considered administrative revisions to the terms of her Will prior to her death, but that she was not contemplating a substantive change to her Will.
Although the Court found that the Deceased was a highly organized person, the Court concluded that the Will may have been misplaced when the Deceased was considering making administrative changes to her Will.
The Deceased had made charitable donations consistent with the terms of her Will and had made statements to friends and advisors confirming the terms of the distribution of her Estate. It was also held that the Deceased understood the consequences of not leaving a Will.
As a result of the Court’s findings of fact, the Will was held to have been proven in solemn form and ordered to be admitted to probate.
Thank you for reading,
Umair Abdul Qadir
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!