Estate Planning

Proof of a Lost or Destroyed Will - Not so Fast

By Hull & Hull LLP

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 In these circumstances, where a party alleges that the will was revoked by being destroyed by the testator when of sound mind, the burden of proof rests on the party alleging the revocation.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

Full post as published by Toronto Estate Law Blog on November 05, 2008 (boomark / email).