Tag: Solemn Form
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
On occasion, a Court may conclude that a disgruntled beneficiary’s agenda was simply to put up roadblocks to the executor without having any real intention or expectation of successfully challenging the validity of a Will. Such was the case in Elliot v Simmonds  EWHC 732 (CJ), which imposed costs sanctions against an individual whose “passive objection” to a Will was found to unreasonably require the executor to prove the Will in solemn form.
In England and Wales (as in Ontario), a person with a financial interest or the executor may seek proof of a will in solemn form (i.e. in open court) upon notice to all persons appearing to have a financial interest in the estate. The court must be satisfied, upon the examination of the witnesses, of the due execution of the Will and of the testamentary capacity of the testator. The onus of proving due execution and testamentary capacity is upon those propounding the Will. (The Ontario Court of Appeal recently pronounced in detail on proof in solemn form in the context of Rule 75 of the Rules of Civil Procedure in Neuberger Estate v. York 2016 ONCA 191). A previous blog on Neuberger Estate v. York can be found here.
In Elliot v. Simmonds, the Deceased (Mr. Jordan) left his entire estate to his wife (Ms. Elliot) and left nothing to his illegitimate daughter (Ms. Simmonds). Ms. Simmonds lodged a caveat (analogous to a Notice of Objection in Ontario) to prevent Ms. Elliot from obtaining probate. Furthermore, Ms. Simmonds made various allegations impugning the validity of the Will, but took no active steps to produce evidence in support. Eventually, the executor of the estate (Ms. Elliot) had no option but to prove the Will in solemn form.
Pursuant to the Civil Procedure Rules (England and Wales) (“CPR”), on a proceeding proving a will in solemn form, the Objector (in this case Ms. Simmonds) can effectively do nothing but insist that the executor attend at trial and prove the Will. Moreover, Ms. Simmonds (wrongfully, as it turned out) assumed that she was immunized against costs of her actions by part 57.78(5)(b) of the CPR which provides that:
(b) If a defendant [i.e. Objector] gives such a notice [i.e. a Notice of Appearance], the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the Will.
At the conclusion of the trial, substantial costs had been incurred by Ms. Elliot who propounded the Will. Ms. Elliot made an application for costs, arguing that Ms. Simmonds acted unreasonably by passively placing the burden on Ms. Elliot to prove the Will notwithstanding that Ms. Simmonds had been in possession of all relevant evidence in advance of the proceeding (which supported the will’s validity), adduced no witnesses or medical evidence to the testator’s capacity, and acted obstructively in the proceedings. As such, the judge agreed with Ms. Elliot and ordered precedent setting costs of GBP65,000 against Ms. Simmonds.
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A recent decision of the Supreme Court of Nova Scotia considers the issue of which individuals may qualify as persons having an interest in an estate.
Kenny v. Kenny Estate, 2016 NSSC 214 (CanLII), featured a situation in which the deceased, a father of two, had executed a new will after his wife and son had died. The deceased’s last will and testament named his daughter as sole residuary beneficiary. His prior will named both children (or their surviving issue) as alternate beneficiaries in the event that his wife predeceased him. The granddaughter of the testator, being the daughter of the predeceasing son, sought to have the will proved in solemn form as a “person interested in the estate”.
The application was heard within the context of Nova Scotia’s Probate Act and the related procedure and regulations. The Probate Act refers to the requirement to prove a will in solemn form on application by an interested person seeking this relief.
In determining that the granddaughter qualified as an interested person and had standing to bring such an application, the Court considered the following facts:
- The granddaughter would have benefitted as an alternate residuary beneficiary under a prior will (as a result of her grandmother’s death and her father’s death before that of her grandfather);
- The inclusion of grandchildren as issue is consistent with the jurisprudence and
the definition of the word used in Nova Scotia’s Intestate Succession Act;
- The granddaughter was a lineal descendant of the testator, and, accordingly, qualified as his “issue”.
In Ontario, an “interested person” who objects to a will and seeks to have it proven in solemn form can, similarly, request this relief pursuant to Rule 75.01 of our Rules of Civil Procedure. However, the Ontario Court of Appeal recently confirmed that the right of an interested person to have a will proved in solemn form is not absolute. An interested person may request proof in solemn form but cannot require it, as it is in the discretion of the Court alone to determine whether the testamentary instrument ought to be proved and, if so, the manner in which this is to be done.
Thank you for reading.