Estate Planning

Proof of a Lost or Destroyed Will

By Hull & Hull LLP

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.) [case not located].

Justin

Full post as published by Toronto Estate Law Blog on November 03, 2008 (boomark / email).