A Lost Will-When a Copy Will Not Do

Written on April 9, 2013 – 8:52 am | by Diane Vieira

When an original will can be traced to the deceased’s hands but cannot be located after death, the presumption is that the deceased destroyed it with the intent of revoking it. However, a person wishing to put forward the will can rebut that presumption. The courts will evaluate all types of evidence to determine the probability of the destruction of the will.

In a recent British Columbia case, only a copy of the deceased’s will could be found and despite extensive search efforts, the original could not be located. The deceased was survived by 7 children, including two children, David and Andrew, who appear to have been his dependants. Unable to locate the original will, the deceased’s eldest child brought an action and asked the court to declare that his father died intestate.

In 2006, the deceased gave instructions to a lawyer to prepare a will. The will provided that his estate be held for the benefit of his son, David, and on David’s death, distributed to his other six children equally. A copy of the will was found in the deceased’s house. The drafting lawyer provided evidence that the original will was sent to the deceased by mail. The court accepted the deceased had received the original document because he paid the lawyer’s invoice enclosed with the original and accessed his safety deposit box shortly after the original was mailed to him.

A few years before his death, the deceased began to complain that David, the main beneficiary of his estate, was not taking adequate care of him. The deceased also spoke to some relatives about the risk of his will being varied through British Columbia’s Wills Variation Act by his other dependant son, Andrew, as the deceased made no testamentary provisions for Andrew’s support. However, the deceased never clearly expressed his wish to revoke his will.

After his death, when the original could not be located, the majority of his surviving children sought a declaration that their father died intestate. However, Andrew sought to rebut that presumption as he wished to bring an action under the Wills Variation Act for support that he could not bring if there was no will to vary. (In Ontario, a dependency claim can be brought on intestacy). Andrew submitted evidence that his father likely lost the will, noted his father’s disorganized home, and the deceased never expressed an intention to revoke his will.

The court found that on a balance of probabilities the deceased destroyed his will with the intent to revoke it. The court was satisfied that the deceased had possession of the original as he accessed his safety deposit box before going to hospital, he was unhappy with the main beneficiary under his will, and was otherwise well organized as other important documents were easy to locate after his death.

The case was decided nearly two and a half years after death and costs for the action (which included a dozen affidavits) were payable from the estate. It is a reminder that there are easier and more efficient ways to revoke a prior will.

Thanks for reading,


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