Recognizing the importance of setting out their intentions for the disposition of their estate on their death, most people put great care and thought into the making of their wills.  However, the storage of wills is not always given the same level of care, resulting in situations where wills are lost. This article explains the legal issues relating to lost wills and provides some suggestions to help you ensure this does not happen.

Overcoming the Presumption of Revocation

Where a testator had possession of his will but cannot be found after death after a diligent search, the law applies a presumption that the testator destroyed the will with the intention of revoking it. If the presumption cannot be overcome, the estate will be distributed as though the testator died without a will.

The Supreme Court of Canada considered the presumption of revocation in the 1935 case of Sigurdson v. Sigurdson, 4 DLR 529. One of the judges in that decision made the following comment regarding the presumption of revocation:

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 conclusion of the evidence 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 well-settled presumption against the will must be applied to the facts.

The presumption is overcome if the evidence is sufficient to show that the testator did not intend to destroy the will. The types of evidence the court may consider include:

• the character of the testator and his or her
  relationship with the beneficiaries;
• the contents of the instrument;
• evidence adducing an alternate explanation for the
  loss of the will;
• words or actions of the testator that are
  inconsistent with an intention to destroy the will; and
• the execution of a codicil that purports to amend
  the lost will.

On the other hand, the evidence may tend to show that the testator did intend to destroy the will. An example is provided in a recent case before the BC Supreme Court, Andersson v. Khan, 2006 BCSC 521. The testator, Dr. Khan, made a will in 1982 under which one of his sons was a beneficiary. Subsequent to making the will, Dr. Khan and his wife transferred title to their home into joint tenancy with the son. A number of years later, in the context of a falling out between them, Dr. Khan severed the joint tenancy with the result that each of them held an undivided interest in the property as tenants in common. The court found the severance of the joint tenancy to be compelling evidence that Dr. Khan had changed his mind with respect to the distribution of his estate, and indicative of “a continuing intention not to adhere to the dispositions made in the will”. Accordingly, the court would not allow the copy of the lost will to be admitted to probate.

Proof of Contents and Validity

If the presumption of revocation can be overcome, the court cannot give legal effect to the will unless it is satisfied as to the contents of the will. Where a photocopy of the signed will is available, it will usually provide sufficient proof of the will’s contents. Where the will was prepared using word processing software, it may be possible to retrieve the electronic file and print a copy. In exceptional circumstances, the courts have granted probate of a will where no copy was available, based on the testimony of a credible witness who had knowledge of its contents.

The court must also be satisfied that the will was executed in accordance with the requirements of the Wills Act. This may be established by the testimony of one of the witnesses, or by a photocopy of the signed will. When contents and execution have been established, the court will grant letters probate based on the available copy or on the other accepted evidence of the will’s contents.

Safeguarding Wills

The best way to prevent loss of a will is to have the lawyer involved in its preparation retain the original will after its execution. Most lawyers who regularly assist with preparing wills maintain an organized system for their storage and retention, and file wills notices with the British Columbia Vital Statistics Agency for the wills they maintain.

If the will is not kept in the lawyer’s wills vault, a bank safety deposit box is a secure alternative for storage. However, if the box is registered only in the name of the deceased, it may take some time and trouble to arrange for the box to be opened and the will removed after death.

Keeping a will together with other important papers at home is not recommended, as it increases the chances of the will being lost, misfiled, or even deliberately removed by another person before or after death.