Nobody is perfect – sometimes you lose your keys. Other times you lose your will. The problem is, by the time your estate trustee realizes the will is gone, you won’t be around to help look for it.

The inability to find a testator’s will does not automatically result in the deceased’s estate being distributed on intestacy. In certain circumstances, a lost or destroyed will may be admitted for probate and the deceased’s estate distributed according to its terms. Those circumstances are succinctly and ably set out in the decision Levitz v Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253.

The deceased, Sarah Stoller, passed away in May 2016 at the age of 96. She left an estate valued around $7 million. In her will, Ms. Stoller left a brass candelabra to the Hillel Lodge Long Term Care Centre and the residue of her estate to the Hillel Lodge Long Term Care Foundation (“Hillel Logde”). However, the original will could not be found.

The estate trustee named in the missing will (who had also acted as Ms. Stoller’s attorney for property) brought an application to determine whether a copy of the lost will could be submitted for probate (see sub-rule 75.02 of the Rules of Civil Procedure which sets out the procedure for proving a lost or destroyed will).

Had there been agreement between the beneficiaries named in the lost will and Ms. Stoller’s next-of-kin who would benefit on intestacy (a niece and a nephew), the court could have made a determination based on affidavit evidence alone without the need for a hearing. However, as the intestate beneficiaries disagreed with the beneficiaries under the will whether Ms. Stoller intended to revoke the will or not, the application was heard by a judge over the course of two days in September 2017.

The Court began its analysis by setting out the elements to prove a lost will:

(1)        due execution of the will;

(2)        particulars tracing possession of the will to the date of the testator’s death, and after if the will is lost after death;

(3)        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.[1]

In this case, the Court found that elements (1)-(3) had been satisfied: Ms. Stoller’s lawyer had prepared the will and overseen its due execution; Ms. Stoller’s lawyer had kept a copy of the executed will; and Ms. Stoller’s lawyer had given the original will to Ms. Stoller to keep. However, while Ms. Stoller had told her attorney for property that she had placed her will in her safety deposit box, it could not be located after her death.

Subsection 15(d) of the Succession Law Reform Act sets out that in order for the revocation of a will to be effective, the will must be destroyed by the testator or by some other person in the testator’s presence with the intention of revoking the will. In order to determine whether, in this case, Ms. Stoller intended to revoke her will, the Court looked at nine relevant factors:

(1)        whether the terms of the will are reasonable;

(2)        Ms. Stoller’s relationship with the beneficiary (in this case, the Hillel Lodge);

(3)        whether any of Ms. Stoller’s other personal effects were destroyed prior to the search for the will;

(4)        Ms. Stoller’s general character in taking care of her personal effects;

(5)        whether Ms. Stoller gave away property during her lifetime which tended to either confirm or contradict the terms of the will;

(6)        statements made by Ms. Stoller;

(7)        whether Ms. Stoller had a safe place to store the will;

(8)        whether Ms. Stoller understood the consequences of not having a will; and

(9)        whether Ms. Stoller claimed to have had a will.[2]

The Court reviewed the evidence of Ms. Stoller’s niece and nephew (who argued Ms. Stoller intended to change her will), Ms. Stoller’s attorney for property/estate trustee, Ms. Stoller’s lawyer, Ms. Stoller’s accountant, and one of Ms. Stoller’s close friends (who all agreed Ms. Stoller did not intend to revoke her will). Among the Court’s most significant findings:

• While Ms. Stoller did not live at Hillel Lodge Long Term Care Centre, she had been an active member of the Ottawa Jewish community and a long-term supporter of Hillel Lodge;
• Ms. Stoller stated to several different people on multiple occasions that she would be leaving her estate to Hillel Lodge;
• Ms.  Stoller had made donations of over $85,000 to Hillel Lodge in the last five years of her life; and
• The will was most likely lost when Ms. Stoller took it out to review it with her lawyer in April 2016, at which time she confirmed that time that she did not want to make any substantive changes to it (Ms. Stoller died a month later, in May 2016).

In reviewing the evidence, the Court made particular note of s. 13 of the Evidence Act which requires that there be corroboration of material facts alleged by an adverse party of any matters occurring before the testator’s death. In this case, the evidence of Ms. Stoller’s niece and nephew (that their aunt intended to revoke her will) was not corroborated by any other evidence.

The Court held that, on balance of probabilities, Ms. Stoller did not intend to revoke her will. As a result, the Court ordered that the copy of the will be admitted to probate as Ms. Stoller’s last will and testament.

[1] Sorkos v Cowderoy (2006), 215 OAC 194, at para. 8.

[2] Goold Estate (Re), 2016 ABQB 303, at para. 71.