Listen to Lost Wills
This week on Hull on Estates, Paul Trudelle and Megan Connolly talk about the issues surrounding lost wills.
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Lost Wills - Hull on Estates Podcast #112
Posted on May 27th, 2008 by Hull & Hull LLP
Megan Connolly: Hi, you’re listening to Episode #112 of Hull on Estates on Tuesday, May 27th, 2008.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Paul Trudelle: Hi, Megan, how are you today?
Megan Connolly: Hi, Paul. I’m fine.
Paul Trudelle: We should introduce ourselves. I’m Paul Trudelle.
Megan Connolly: And I’m Megan Connolly.
Paul Trudelle: And today we thought we would talk about an issue that comes up time and time again. It’s an issue that plagues a lot of estates. It arises from the fact that people don’t always organize their affairs as neatly and as nicely as we would like. It’s the issue of lost Wills and what you can do in the case of a lost Will, where there’s a Will that you know existed but doesn’t exist now; what are the options open to the estate trustee under that lost Will or the beneficiaries of the estate.
Megan Connolly: And as a starting point, I think the first question to ask is, why do you know it’s lost? Where is it supposed to be? Do you have a Mom who you know made a Will, and was keeping a copy of it in her bedside drawer and suddenly it’s gone? Or do you just know generally, you think your Mom made a Will and it might be out there somewhere. I think the first thing to do is establishing whether it’s lost or whether somebody, some sort of professional has it, and you’re just not sure who.
Paul Trudelle: That’s right. And I think that’s a key issue is just finding that Will, steps taken to find a Will. Often people know of the lawyer for the deceased and they can make inquiries of that lawyer and that lawyer might help you down the right path to finding the Will he made, or she may have a copy of that Will or may give you some information as to what happened to the Will, whether it was given to the deceased, where it may have been kept, other steps you would take. I guess there’s a number of other steps to finding the Will. We can talk about those in another podcast. But, if you do know that there was a Will and you have some evidence of that and the Will no longer exists, there are options open to you. And you can prove that lost Will or prove a copy of that Will and then have that copy admitted to probate if you’re able to find out with some certainty of the fact that it did exist.
Megan Connolly: I think one of the first determinations that need to be made is, has the Will simply gone missing or did the testator intend to destroy it? This is an important distinction. I may make a Will, decide I don’t want it to be in effect any more and tear it up. That would be me intentionally destroying it. Likewise, I could have a Will. It could get destroyed by accident, such as in a fire or something. I guess technically it’s destroyed but that doesn’t mean I intended to revoke it.
Paul Trudelle: Right and I think that’s a key distinction, is the intention. The Succession Law Reform Act talks about revocation of a Will and how it’s revoked. One of the ways a Will can be revoked is “by burning, tearing or otherwise destroying it” and I’m reading this from the Section now, “by the testator or some person in his or her presence and by his or her direction” and the key word is “with the intention of revoking it”. So if it’s destroyed, and there is an intention to revoke, then the Will will be considered to be revoked. And with a lost Will, if you don’t know where the Will is, there are presumptions in law that apply and the Court will find that if a Will is lost, they will presume that it’s been revoked, that it’s been lost through destruction with the intention of revoking it.
So that is a key presumption that comes into play where a Will is lost and that’s a presumption that will fly unless there’s some way of overcoming that presumption. And maybe we can talk a bit how that presumption can be overcome and what cases will a Court find that a Will is lost, however there was no intention to revoke the Will.
Megan Connolly: So one of the issues that comes up is tracing where the Will last was. Was the Will last in the possession of the testator or was the Will somewhere else, like in the lawyer’s office? And this sort of goes back to that presumption of whether or not the testator intended to revoke it.
Paul Trudelle: That’s right. If the Will was last in the possession of the testator, and it’s not found at the time of death, the presumption is that it was revoked. However, you can overcome that presumption or the presumption won’t apply if the Will wasn’t in the possession of the testator. So, like you said, if the Will was with a third party, was left with a lawyer or someone else and then was lost outside of the control of the testator, then the Court will not find that there was an intention to revoke because it’s not an act that the testator did to get rid of this Will. And we’ve seen cases where Wills are in the possession of lawyers and they can be destroyed through fire or accident or in the possession or left with third parties and can be lost or sometimes they’re lost after the person dies. So the Will is there when the person dies. Subsequently, however, through the act of cleaning up the
Megan Connolly: the house
Paul Trudelle: the estate, cleaning up the house, usually it goes out with all of the
Megan Connolly: all the garbage
Paul Trudelle: all the old newspapers
Megan Connolly: and the original Will
Paul Trudelle: and the original Will goes too.
Megan Connolly: goes to the dumpster.
Paul Trudelle: Now again, in those cases sometimes there is an intention to revoke but it’s not the testator who wants to revoke it. So that sort of evidence is what the Court will want to hear with respect to where the Will was and how it came to be lost. And it’s often a difficult question to answer and I always bug my kids about that, where did you lose it? But, you know, if you can lead some evidence as to where it was when it went missing, that will help. And either the presumption won’t apply or depending on whether it was in the possession of the testator, it may be held that the presumption does apply and then you’ve got the problem with the lost Will and prior Wills may be in effect or there may be an intestacy.
Megan Connolly: Now something that does arise is whether or not a copy of the Will can be found. And one of the things that happens is a lawyer drafts the Will, gives the original to the testator. The lawyer maintains a photocopy of it in his file, although not always. And when the Will, the original suddenly disappears, people look to the lawyer for the copy. Now that can help but, of course, it doesn’t necessarily speak to the fact of whether or not the testator intended to destroy the original or whether it simply went missing.
Paul Trudelle: Right, no, it doesn’t address that. But it does address the fact of what the Will actually said. So if the other evidentiary issues with respect to the lost Will can be overcome, then the Court at least has something to propound, has something to declare as being valid or reflecting the wishes of the testator. So the Court can prove a copy of the lost Will or in some cases, where a copy doesn’t exist, the Court may receive evidence as to what the Will actually said from those who may have read it or prepared it.
Megan Connolly: So if you have a situation where there is no copy of the Will and someone wants to prove it, what would they do? What sort of evidence do you think would be helpful?
Paul Trudelle: Well again, the evidence with respect to how it went missing is going to be helpful, you know, necessary. If there is some evidence from let’s say a lawyer who prepared the Will who can say that, “Yes, I prepared the Will, this is what the instructions were, this is what the Will said”, this is…and you can give evidence as to the circumstances as to its execution because that’s something that’s going to have to be proved as well. And then can give some evidence as to what happened afterwards, you know, “I held on to it, I put it into this file and when we moved offices it was lost”. That evidence is going to be very helpful. Notes and records that the lawyer may have kept or his recollection or her recollection with respect to the Will will be relied upon by the Court.
Megan Connolly: Providing the lawyer is still living. If he’s not, then you’ve got another problem.
Paul Trudelle: If he’s not, then it’s yet another evidentiary problem and you may be able to prove the Will is lost but no one knows what that lost Will said, in which case, the Court won’t find in favour of that Will and you may have an intestacy. Perhaps we can spend a minute or two talking about the procedure for proving a lost Will.
Megan Connolly: Okay.
Paul Trudelle: And the procedure is set out in the Contentious Proceedings Rule 75 that relates to estates. And it’s Rule 75.02 and it provides that the validity and contents of a Will that has been lost or destroyed may be proved on an application and then it sets out two different streams. The first stream is by Affidavit evidence, without an appearance, so it can be done over the counter, where all persons who have a financial interest in the estate consent to the proof.
Megan Connolly: Right, so that’s potentially a live issue, consent, right there, as being the operative word. And if the beneficiary is under the lost Will and the beneficiary is under the intestacy or a previous lawyer different to you likely won’t be doing it over the counter.
Paul Trudelle: Consent might be harder to get in those cases. But in a lot of cases, though, the Will says that, “all my estate goes to my two children” and the two children are the intestate beneficiaries, so they’re prepared to consent to what the Will says. No one else has a financial interest in the estate, so it can often go over the counter.
In addition to that, if there is no consent, then it’s to be proved in a manner provided by the Court in an Order giving directions under Rule 75.06. So if it is a contentious issue and the beneficiaries on intestacy are different than the beneficiaries under this lost Will, then the Court will set out a procedure for dealing with that and will set out, you know, what the issues are to be decided, allow the parties to go out and obtain the evidence of anybody who has knowledge of the Will or knowledge of what happened to the Will, and then provide for probably a trial of the issues down the road.
Megan Connolly: Well, of course, the down side is if this happens, it’ll probably be…well, potentially contentious and may be an expensive way of going about things. So if you have an original Will, I guess, try not to lose it.
Paul Trudelle: I think that’s a very fair message.
Megan Connolly: Well I guess on that note…
Paul Trudelle: On that note, maybe we will wrap up. We want to thank you for listening and if you have any comments, we ask you to send us an e-mail at firstname.lastname@example.org.
Megan Connolly: Or you can give us a call at 206-350-6636 or visit us on-line at estatelaw.hullandhull.com.
Paul Trudelle: That’s great. Thank you, Megan.
Megan Connolly: Thanks, Paul.
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