Today’s blog was written by Jonathon Vander Zee, student-at-law at de VRIES LITIGATION LLP

The original copy of a last will and testament is lost and cannot be found… now what? Losing an original copy of a will does not necessarily mean that it is no longer legally binding or invalid. Where a copy of the original will exists, a party may make an application to the court to have the copy admitted to probate if they are able to satisfy the test set out in Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253. To prove the lost will, the applicant must:

1. Provide proof of the due execution of the will;
2. Provide particulars which trace possession of the will to the date of the testator’s death, and afterwards if the will was lost after death;
3. Provide proof of the contents of the will; and
4. Rebut the presumption that the will was destroyed by the testator with the intention of revoking it.

One of the many unfortunate consequences of losing an original will is that upon trying to prove that lost will in court, a presumption arises that the will was destroyed by the testator with the intention of revoking it.[i] However, this presumption is rebuttable, and the party who is trying to prove the lost will has the opportunity to put forward evidence that would suggest that the will was not destroyed by the testator and was instead simply and literally… lost.

Rebutting the Presumption

There are typically 9 main factors that the court will consider when attempting to determine whether the original will was intentionally destroyed:[ii]

1. Whether the terms of the Will itself were reasonable;
2. Whether the testator continued to have good relationships with the beneficiaries in the copy of the Will up to the date of death;
3. Whether personal effects of the deceased were destroyed prior to the search for the Will being carried out;
4. The nature and character of the deceased in taking care of personal effects;
5. Whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated;
6. Statements made by the testator which confirm or contradict the terms of distribution set out in the will;
7. Whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers;
8. Whether there is evidence that the testator understood the consequences of not having a Will, and the effects of intestacy; and
9. Whether the testator made statements to the effect that he had a will.

While the factors listed above are very helpful, the list continues to be non-exhaustive, and all of the relevant facts in any given case must be considered by the court when determining whether the presumption is rebutted.

A key principle to remember is that all of these factors are considered together, and none of the specific factors will be deemed as more “important” than any other factor. Similarly, any conclusion by the court using these factors is not based on how many factors were or were not established or satisfied. The civil standard of proof at common law is on a balance of probabilities, and consequently, the court will weigh these factors and determine whether, on a balance of probabilities, there was an intention by the testator to intentionally destroy their original will.

It is important to note that the burden on the party trying to rebut the presumption is a very heavy burden.[iii] However, this does not mean that courts will be overly stringent in their analysis. Where it is clear from looking at each factor and the overall facts of the case, the courts have shown a willingness to find in favour of the party attempting to rebut the presumption. Some examples of this can be found in Levitz, Goold Estate v Ashton, 2016 ABQB 303, and Polischuk Estate v Perry, 2014 BCSC 1089. In all of these cases, the court concluded that the testator did not intend to revoke their will even though it was lost and could not be found.

These factors have been consistently used by the courts since they were first established in Haider, and they are still the benchmark which the courts use today to aid them in their analysis. They have been considered by the court as recently as July 2023,[iv] and there are no signs that the courts will stray from these factors when conducting this inquiry.

[i] Sorkos v Cowderoy, 2006 CanLII 31722, at para 8.

[ii] Haider v Kalugin, 2008 BCSC 930, at para 13.

[iii] McBurnie v Patriquin, 1975 CanLII 2391, at para 10.

[iv] Galloway Estate (Re), 2023 BCSC 1204, at para 73.