Lost Will and Testament: Rebutting the Presumption of Revocation

Upon death, a deceased’s assets are, ideally, distributed according to the instructions set out in his or her Will. However, if the original Will is lost, there are a number of conditions which must be satisfied in order to rely on the contents of the Will. The test to prove a lost Will, as articulated by the Court of Appeal in Sorkos v Cowderoy, has four elements. The party or parties seeking to rely on the lost Will must:

1. prove that the Will was property executed;
2. prove the location of the Will at the date of loss;
3. rebut the presumption that the deceased intended to revoke the Will; and
4. prove the contents of the lost Will.

The obstacles of proving that the Will was properly executed and proving its contents (the first and fourth elements above) are often satisfied by producing a photocopy of the Will. Regarding the second and third elements above, if it is proved that the Will was last in the hands of the deceased, there is an automatic presumption (as set out by the Supreme Court of Canada in Lefebvre v Major) that the deceased intended to revoke the Will. To prove the Will, that presumption must be rebutted on a balance of probabilities (meaning that evidence must be produced showing that it is more likely than not that the deceased did not intend to revoke the Will). A number of factors are considered when determining whether the presumption of revocation is refuted, among them the deceased’s capacity to revoke the Will and the reasonableness of the gifts in the Will, considered in the context of the deceased’s circumstances and relationships.If that presumption is not refuted, the deceased’s assets may be distributed according to the deceased’s most recent prior Will (if valid) or, if there is no such Will, the rules of intestacy (i.e. the rules which apply when there is no Will), as set out in the Succession Law Reform Act.The rules governing legal practice also provide that the Will may be proved by sworn written statements – without an in-person attendance at court – provided the consent of certain parties is obtained.Testators would be wise to carefully track their original Will (and all copies of it) in an effort to avoid – or at least reduce the chances of – obstacles arising which may result in more difficult, lengthy and costly estate administration.