Tag: lost will
In today’s podcast, Paul Trudelle and Sayuri Kagami discuss the court’s reasons for finding that the presumption of revocation had been rebutted in Levitz v Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253 where an original will was lost.
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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!
Where a will can’t be found at death, there is a presumption that the will has been destroyed by the testator with the intention to revoke it, unless there is some evidence to the contrary.
Section 19 of the Succession Law Reform Act says that a will revoked in any way can only be revived by a new will, by a codicil, or by re-execution. Where a will has been lost (and therefore presumed to have been revoked), the previous will is not revived unless one of the methods in s. 19 apply.
The doctrine of dependent relative revocation may apply to save the prior will. This occurs when a testator intends a revocation by destruction to be conditional upon another will being effective (either a prior will that the testator thinks will be revived, or a subsequent one that has yet to be executed). The doctrine only applies where there is some knowledge or evidence of the testator’s intention to make the conditional revocation.
In the context of lost wills, it seems very unlikely that the prior will would be revived. The result would, in all likelihood, be an intestacy. The reason for such an outcome is that the court doesn’t know the circumstances under which the will was destroyed. So it cannot know whether the testator intended the destruction to be conditional on either the effectiveness of a new will or the revival of an old will. Even if it could be shown that the testator intended the revival of a prior will, the intention cannot be carried out because that would amount to a revival of the will otherwise than by the means set out in the statute.
Thanks for reading,