Can An Unsigned Copy of a Lost Will Be Probated?

The Court May Consider a number of factors

 

If a Will is last known to be in the testator’s possession and cannot be found, the law presumes the testator destroyed the Will in order to revoke the Will. The strength of the presumption will depend upon the character of the custody which the testator had over the Will. This presumption may be rebutted by evidence, written or oral, of the facts and an application may be made for an order admitting the will to probate by a copy, a completed draft, a reconstruction or evidence of its content. The court may consider a number of factors, as set out in Haider v. Kalugin, 2008 BCSC 930, in determining whether the presumption has been overcome. The burden on the person who is trying to rebut the presumption is a very heavy burden. In circumstances where a testator becomes mentally incapable after executing the will, the party alleging revocation has the burden of showing that the destruction occurred while the testator was of sound mind.

Polischuk Estate v Perry, 2014 BCSC 1089

In this case, the deceased, Ms. Polischuk, died in December 2012. Her current Will, claimed to have been executed on August 31, 2004, could not be located. The executor of the estate, appointed in the 2004 Will, was the Ms. Polischuk’s long-time lawyer, Steven Wong. Steven applied to have an unsigned copy of the lost Will admitted for probate. The court considered the relationships between Ms. Polischuk, the petitioner and the respondents in the action. The numerous respondents were either named as beneficiaries in the 2004 Will, or were related persons who would benefit from the estate if the court did not grant letters probate.

Steven had taken instructions from Ms. Polischuk and prepared the Will at issue. However, due to him being named as a beneficiary he referred Ms. Polischuk to a colleague, Garry wong, to witness the execution of the Will. In support of the validity of the 2004 Will, Steven deposed that Ms. Polischuk was of sound mind and would not revoke her Will by destroying it. He further added that she was aware that destroying her Will would result in intestacy, the very thing she adamantly wished to avoid. Steven claims that he even went as far as to give Ms. Polischuk his personal unlisted home phone number, so that if she had wanted changes to her current Will she would be able to contact him notwithstanding his proceeding with retirement. Steven’s colleague, Garry, also provided affidavit evidence confirming his attendance at execution of the Will, as well as a 

member of his staff. However, the description of his services in Garry’s statement of account notes “corrections as required.” What these corrections were not addressed in Garry’s affidavit or by any other evidence before the court. The court also described the search efforts made by the Public Guardian and Trustee and Steven for the 2004 Will. In February 2010, Ms. Polischuk was declared incapable of managing her affairs due to her suffering from Alzheimers. However, the nurse who assessed her and made this decision speculated that she had already been suffering from cognitive impairment for 2 years. Since it could not be determined when Ms. Polischuk had become mentally incapable between August 31, 2004 and February 2010, the court assumed her Alzheimer’s disease had impacted her memory in placing her Will in her safety deposit box.

The Law

[60] The law is clear: if a will is last known to be in the testator’s possession and cannot be found, the law presumes the testator destroyed the will in order to revoke the will. However, the presumption can be rebutted by written or oral evidence.

[61] In Haider v. Kalugin, 2008 BCSC 930 at paras. 9-13 Wilson J. helpfully summarized the law applicable to this issue:
8. The applicable law is not in dispute. When an original will has been lost, mislaid or destroyed or is not available, an application may be made for an order admitting the will to probate by a copy, a completed draft, a reconstruction or evidence of its content: British Columbia Probate and Estate Administration Manual, 2nd edition, 2007, s.5.61.

9. If a Will last known to be in custody of a testator is not found at his death, the presumption is that the testator destroyed it with the intention of revoking it (“animo revocandi”). However, that presumption may be rebutted by evidence, written or oral, of the facts. The strength of the presumption will depend upon the character of the custody which the testator had over the Will: Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (Eng. C.A.).

10. In Sigurdson v. Sigurdson, [1935] 2 D.L.R. 445 (Man. C.A.), at paragraph 49, Davis J. said:
[49] It needs very clear and convincing evidence to establish what is alleged to be a lost will… The person propounding such a will has a burden of proof that persists throughout the whole trial to satisfy the court at its conclusion that the will is in fact lost and was not destroyed by the testator with the intention of putting an end to it. Each case of course turns upon its own facts but the principles respecting the wellsettled presumption against the Will must be applied to the facts.

11. In Welch v. Phillips (1836), 1 Moo. P.C. 299 (England P.C.), at 302 , referred to in Bohersky, Re, [1954] A.J. No. 12 (Alta. Dist. Ct.), at paragraph 6, the court said:
[6] If a will traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by the deceased himself; and that presumption must have effect, unless there is good and sufficient reason to repel it. It is a presumption founded on good sense, for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety and

would not be either lost or stolen, and if, on the death of a maker, is not found in his usual repositories or else where he resides, it is in a high degree of probable that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others, which raises a higher degree of probability to the contrary.

12. As stated by MacKeigan, C.J.N.S. in MacBurnie v. Patriquin, [1975] N.S.J. No. 447 (N.S. C.A.), at paragraph 10:
[10] I should emphasize that the burden on the person who is trying to rebut the presumption is a very heavy burden.

13. Some of the factors considered in determining whether the presumption has been overcome are:
• whether the terms of the Will itself were reasonable: Lefebvre v. Major, [1930] S.C.R. 252 (S.C.C.) [hereinafter Pigeon];
• whether the testator continued to have good relationships with the beneficiaries in the copy of the Will up to the date of death: Pigeon, supra;
• where personal effects of the deceased were destroyed prior to the search for the Will being carried out: Pigeon, supra;
• the nature and character of the deceased in taking care of personal effects: Pigeon, supra;
• whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated: MacBurnie v. Patriquin, supra; Andersson v. Khan Estate, [2006] B.CJ. No. 716 (B.C. S.C.);
• statements made by the testator which confirm or contradict the terms of distribution set out in the will: Bobersky Estate, supra, Andersson, supra, Holst Estate v. Holst, [2001] B.C.J. No. 1560 (B.C. S.C.), Green Estate, Re, [2001] A.J. No. 1253 (Alta. Q.B.);
• whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers: Bobersky Estate, supra, Brimicombe v. Brimicombe Estate, [2000] N.S.J. No. 157 (N.S. C.A.);
• whether there is evidence that the testator understood the consequences of not having a Will, and the effects of intestacy: Bobersky Estate, supra;
• whether the testator made statements to the effect that he had a will: Bobersky Estate, supra.

[62] A different situation arises when a testator becomes mentally incapable/unstable after executing the will.

[64] In Re Broome, 1961 CanLII 394 (MB CA), [1961] M.J. No. 51 (C.A.), 29 D.L.R. (2d) 631 at p. 633 [Re Broome], Freedman, J.A. said:
It seems to me that fundamentally this case turns on the question of onus of proof. No one saw the testator destroy his will. In fact it may never have been destroyed. It has simply not been found after very extensive searches therefor. In such circumstances – leaving aside for the moment the question of insanity – there is a prima facie presumption that the testator destroyed the will animo revocandi . Such presumption, however, may be rebutted by evidence, which, however, must be clear and satisfactory: 34 Hals. 2nd ed., p. 87. The intervention of insanity after execution of the will, however, creates a different situation. That an insane person lacks the legal capacity to revoke his will is unquestionable. If Reuben Broome destroyed his will while insane such destruction would not constitute revocation of the will. On that 

both counsel agree. But since there is no evidence as to when he destroyed his will – assuming he did so – there is a sharp divergence between counsel as to what presumptions apply and to who must bear the burden of proof. [Emphasis added.]

 

[65] And continuing at p. 634, Freedman, J.A said :
The rule places on the party alleging revocation the burden of showing that the destruction occurred while the testator was of sound mind.

[66] The preceding law establishes that the burden of proof is, in most circumstances, on the party asserting that the will was in fact lost and not destroyed. Re Broome, however, notes that the burden of proof shifts in the circumstance where a person becomes mentally incapable/unstable. When that situation arises, the evidentiary burden shifts to the party alleging that the testator destroyed the will to prove that the destruction occurred while the testator had capacity.

Analysis

The court determined that the burden of proof shifted to Ms. Polichuk’s nephews, a portion of the individuals who made up the respondents in this case who would benefit from the estate if the court did not grant probate of the 2004 Will. They were unable to prove when Ms. Polischuk had become mentally unstable and there was no evidence that demonstrated she had destroyed the 2004 Will intentionally or otherwise – it could have simply been a case of losing the Will based on her mental state at the time. Therefore, the burden of proof to the nephews to prove on a balance of probabilities that the Will was destroyed and revoked when Ms. Polischuk was of sound mind could not be discharged.

In considering the factors set out in Haider v Kalugin, 2008 BCSC 930, the court found the following:
a. The 2004 Will’s terms were reasonable. The bequests in her Will were consistent with her previous will, except for eliminating shares in her estate to her nephews and nieces. She expressed to Steven Wong that it was due to a “falling out” which the court found to be reasonably likely to have occurred.
b. There was no evidence to explain why Ms. Polischuk did not place the 2004 Will in a safety deposit box as she had contemplated and communicated to Garry Wong. However, evidence demonstrated that she did have hiding places in her home for documents, but the 2004 Will was not found in the home after multiple searches.
c. It was unlikely that Ms. Polischuk would have destroyed her Will after having executed it without once again going to a lawyer to make changes to it. At the very least, she would have contacted Steven Wong.

d. Destroying her Will without replacing it was inconsistent with evidence that demonstrated that Ms. Polischuk appreciated the effects of intestacy on her estate and that she was strongly opposed to her estate passing in intestacy.

e. No evidence demonstrated that Ms. Polischuk disposed of any property during her lifetime in a manner that was inconsistent with the 2004 Will.
f. The nurse who assessed Ms. Polischuk and diagnosed her with Alzheimers was told by Ms. Polischuk that she had a Will. This statement would have been made when Ms. Polischuk’s cognitive functioning was likely impaired.
g. No evidence demonstrated that any of Ms. Polischuk’s personal effects were destroyed.
h. No evidence demonstrated that Ms. Polischuk had advised anyone that she destroyed her Will or intended to make changes to the Will, other than her friend’s statement that Ms. Polischuk told her that she was considering having her friend act as an executor. However, suggesting an alternate executor is not consistent with an intent to destroy or revoke a Will.
i. Although the Will has not been found in the offices of the Public Guardian and Trustee or Vancouver Coastal Health Authority, the evidence suggests that a Will may have been provided to one of those government offices.

Estate Litigation Lawyer Angela Price-Stephens

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