Tag: destroyed wills

23 Nov

Lost and Destroyed Wills: Procedural Considerations

Umair Estate & Trust, Executors and Trustees, Litigation, Wills Tags: , , , 0 Comments

Earlier this week, I blogged about a recent decision of the Ontario Superior Court of Justice that highlighted the factors the Court will consider when a party seeks to rebut the presumption of revocation when a testator’s Will cannot be located upon death.

Today, I will be highlighting the litigation procedure in Ontario for an Application to prove a lost or destroyed Will.

Pursuant to Rule 75.02 of the Rules of Civil Procedure, the validity and contents of a Will that has been lost or destroyed  must be proved by way of an Application before the Court.

As noted in my previous blog post, the 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.

However, Rule 75.02(a) provides that a Will may be proven by way of affidavit evidence only if all persons with a financial interest in the testator’s estate consent to the proof. If the appropriate consents can be obtained, the validity and the contents of the Will can be proved without the need for Court appearances.

It is important to note that Rule 75.02(a) appears to require the agreement and consent of all persons with a financial interest. In addition, it is strongly recommended that a person contemplating an Application pursuant to Rule 75.02 obtain legal advice as to who may have a financial interest in the Estate.

For instance, if the result of the Will not being proved would be an intestacy, careful consideration should be given to the consents required from any intestate heirs. Legal advice should also be obtained if there are persons with a financial interest who are not sui juris, such as minors or persons under disability.

If all of the individuals with a financial interest do not consent to proof, Rule 75.02(b) states that the Application will proceed “in the manner provided by the court in an order giving directions made under rule 75.06.” Rule 75.06 provides the Court with the ability to direct the procedural conduct of the litigation.

Thank you for reading,

Umair Abdul Qadir

 

20 Nov

Lost Wills and Rebutting the Presumption of Revocation

Umair Estate & Trust, Estate Planning, Executors and Trustees, General Interest, Litigation, Trustees, Wills Tags: , , , , 0 Comments

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, [2006] 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

05 Oct

The Doctrine of Dependent Relative Revocation

Suzana Popovic-Montag Wills Tags: , , , , , , 0 Comments

Section 15 of the Succession Law Reform Act (“SLRA”) sets out those events which may revoke a will: (a) marriage (subject to s.16), (b) another validly executed will, (c) writing a declaration with animo revocandi (intention to revoke), validly executed, or (d) destruction of the will by the testator or by another in the presence of and at the direction of the testator.

However, revocation may not always be absolute.

Revocation may not always be absolute.
“There must be a close connection between the revocation and substitution in order for the doctrine of dependent relative revocation to apply.”

We recently blogged on the concepts of revival and republication of wills. Revival refers to the practice of “saving” a previously revoked will, whereas republication simply makes an older valid will operate as if it had been executed at a later date.

Another way of “saving” an ostensibly revoked will is by proving that the revocation was subject to a condition that has not been fulfilled. If a testator’s revocation is subject to a condition that is never fulfilled, the doctrine of dependent relative revocation can be invoked.

Although not expressly set out in the SLRA, a revocation by destruction or by a later will or codicil may be conditional. If the testator revokes a will with the intention of replacing it with a new will or reviving an old will, the intention to revoke is conditional on the validity of such other will. The doctrine of dependent relative revocation prevents an estate passing as an intestacy. Conditional revocation is discussed in detail in Chapter 4 of Probate Practice.

Contemporaneous intention is key: “to bring the case within the principle, it must appear that the testator considered the substitution of some valid disposition as part of the act of revocation at the time when the act was done” (Probate Practice (5th ed.) at p. 170).

Therefore, in order to establish that the principle applies to a particular case, the evidence must show that the testator considered the substitution of another valid testamentary document as part of the revocation. There must be a close connection between the revocation and substitution in order for the doctrine of dependent relative revocation to apply. It is insufficient that a testator intends to make another will at a later time yet dies before doing so.

Thank you for reading.

Suzana Popovic-Montag

05 Nov

Proof of a Lost or Destroyed Will – Not so Fast

Hull & Hull LLP Estate & Trust Tags: , , , , , , , , 0 Comments

On Monday, I blogged on proving a lost or destroyed will in court:  If an original will which was last traced into the possession of the testator cannot be located following the death of the testator, a rebuttable presumption arises that the testator destroyed the will with the intention of revoking it.

However, there is an additional or complicating factor worth considering. What happens when the testator regrettably looses his/her mental capacity to make, change, or revoke a will? In these circumstances, where a party alleges that the will was revoked by being destroyed by the testator when of sound mind, the burden of proof rests on the party alleging the revocation. The presumption of revocation does not apply. The party alleging revocation must satisfy the court that it is more probable than not that, while of sound mind, the testator revoked the will by destruction. 

Rebutting the presumption of revocation or proving that the testator revoked his/her will by destruction where testamentary capacity is an issue can be difficult. It is obvious that proof of a lost or destroyed will is fact driven. No matter what position a party may advance in court, they will have to ensure that the proper evidentiary base is established to carry the day.

Thanks for reading.

Justin

03 Nov

Proof of a Lost or Destroyed Will

Hull & Hull LLP Estate & Trust, Wills Tags: , , , , , , 0 Comments

Welcome to my week of blogs.

The perennial problem of a lost or destroyed will is not new. Much law has been written and effort spent on the subject. I am also counsel in a lost will proceeding that is a real bugaboo. I therefore thought that it would be worthwhile to cover off the basics.

In terms of procedure, Rule 75.01 states that the validity and contents of a will that has been lost or destroyed may be proven on an application by affidavit evidence, without appearance, where all persons who have a financial interest in the estate consent to the proof. Where consent proves fleeting, the court may give directions under Rule 75.06. Rule 75.06 states that any person who appears to have a financial interest in an estate may apply for directions as to the procedure for bringing any matter before the court (including proving a lost or destroyed will).

With respect to the substantive law, when a will has been shown to be last in the custody of the testator and cannot be found at his/her death, a presumption arises automatically that the testator destroyed the will with the intention of revoking it (animo revocandi). The presumption can be rebutted on sufficient evidence. Suspicions alone are not enough to rebut the presumption; the presumption must be rebutted by facts. 

The presumption will be more or less strong according to the control the testator had over the will, the character of the testator and his relation to the beneficiaries, the contents of the testamentary document, and the possibility of its loss being accounted for otherwise than by intentional destruction on the part of the testator. Only in very strong cases have the courts permitted the presumption to be rebutted. The courts have emphasized that the burden on the person who is trying to rebut the presumption is "very heavy". For a good summary of the law, see Wagenhoffer v. Wagenhoffer Estate, [1986] S.J. No. 8 (Sask. C.A.) [link not available].

Justin

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