Follow Up: A Lost Will and the Presumption of Revocation

Nov 14, 2017

In my last entry, I described the process of probating a lost Will.  Shortly after I published this entry, a colleague referred me to a recent decision of the Ontario Superior Court of Justice in Ottawa on this very point.  You can find the Levitz v. Hillel Lodge Long Term Care Foundation decision here.

In Levitz, an executor sought to probate a lost Will.  In her decision, Justice Bell confirmed that in order to do so, an executor 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.

In the case of a Will drafted by a lawyer in which a copy of the Will survives (as in Levitz), the first and third requirements above will not pose much difficulty.  The second requirement will be a key part of the affidavit of the executor seeking to probate the Will.

In Levitz, the main issue was the presumption in requirement #4 above.  The beneficiaries who would inherit if the deceased had died without a Will argued that there was insufficient evidence to rebut the presumption that the deceased had destroyed her Will with the intention of revoking it. 

I mentioned the presumption of revocation, and how one might rebut it, in my last entry.  That discussion, however, was in the context of an uncontested application in which rebutting the presumption is a matter of due diligence to satisfy the court.  In Levitz, Justice Bell was faced with a contested application. 

The stakes in Levitz were significant.  The deceased had left an estate of nearly $7,000,000.  If the Will was accepted to probate, the entire estate (other than a candelabra) would pass to a charity named in the Will as the residuary beneficiary. If, on the other hand, the Court refused to accept the Will to probate, the deceased’s next-of-kin would receive the estate in accordance with the intestacy provisions of the Succession Law Reform Act.

Justice Bell referred to nine factors a court will consider in assessing whether the presumption of revocation has been rebutted:

  1. whether the terms of the Will are reasonable;
  2. the deceased’s relationship with the beneficiary;
  3. whether the deceased’s personal effects were destroyed prior to the search for the Will being carried out;
  4. the deceased’s nature and character in taking care of her personal effects;
  5. whether there were any dispositions of property during the deceased’s lifetime which confirm or contradict the terms of the copy of the Will sought to be probated;
  6. statements made by the deceased which confirm or contradict the terms of distribution set out in the Will;
  7. whether the deceased was of the character to store valuable papers, and whether the deceased had a safe place to store the papers;
  8. whether there is evidence that the deceased understood the consequences of not having a will and the effects of an intestacy; and
  9. whether the deceased made statements to the effect that she had a will.   

These factors are all directed at assessing how likely it is that a deceased would have actually destroyed his or her Will with the intention of revoking.  For example, a court may conclude that it is more likely than not that a deceased did not destroy her Will with the intention of revoking it if she was familiar with estate planning, left a reasonable Will, had a strong relationship with the beneficiary named in that Will, was attentive to her affairs, and discussed her Will favourably with others, and if there is an alternate explanation as to why the Will is missing.   

In the Levitz decision, after reviewing the factors above, Justice Bell concluded that the presumption of revocation had been rebutted. In Justice Bell’s opinion,  it was more likely that the deceased had misplaced her Will while she was reviewing it shortly before her death.

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