Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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On Monday, I blogged on proving a lost or destroyed will in court:  If an original will which was last traced into the possession of the testator cannot be located following the death of the testator, a rebuttable presumption arises that the testator destroyed the will with the intention of revoking it.

However, there is an additional or complicating factor worth considering. What happens when the testator regrettably looses his/her mental capacity to make, change, or revoke a will? In these circumstances, where a party alleges that the will was revoked by being destroyed by the testator when of sound mind, the burden of proof rests on the party alleging the revocation. The presumption of revocation does not apply. The party alleging revocation must satisfy the court that it is more probable than not that, while of sound mind, the testator revoked the will by destruction. 

Rebutting the presumption of revocation or proving that the testator revoked his/her will by destruction where testamentary capacity is an issue can be difficult. It is obvious that proof of a lost or destroyed will is fact driven. No matter what position a party may advance in court, they will have to ensure that the proper evidentiary base is established to carry the day.

Thanks for reading.

Justin

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Welcome to my week of blogs.

The perennial problem of a lost or destroyed will is not new. Much law has been written and effort spent on the subject. I am also counsel in a lost will proceeding that is a real bugaboo. I therefore thought that it would be worthwhile to cover off the basics.

In terms of procedure, Rule 75.01 states that the validity and contents of a will that has been lost or destroyed may be proven on an application by affidavit evidence, without appearance, where all persons who have a financial interest in the estate consent to the proof. Where consent proves fleeting, the court may give directions under Rule 75.06. Rule 75.06 states that any person who appears to have a financial interest in an estate may apply for directions as to the procedure for bringing any matter before the court (including proving a lost or destroyed will).

With respect to the substantive law, when a will has been shown to be last in the custody of the testator and cannot be found at his/her death, a presumption arises automatically that the testator destroyed the will with the intention of revoking it (animo revocandi). The presumption can be rebutted on sufficient evidence. Suspicions alone are not enough to rebut the presumption; the presumption must be rebutted by facts. 

The presumption will be more or less strong according to the control the testator had over the will, the character of the testator and his relation to the beneficiaries, the contents of the testamentary document, and the possibility of its loss being accounted for otherwise than by intentional destruction on the part of the testator. Only in very strong cases have the courts permitted the presumption to be rebutted. The courts have emphasized that the burden on the person who is trying to rebut the presumption is "very heavy". For a good summary of the law, see Wagenhoffer v. Wagenhoffer Estate, [1986] S.J. No. 8 (Sask. C.A.) [link not available].

Justin