Lost Wills and the Presumption of Revocation

Levitz v. Hillel Lodge Long Term Care Foundation¹

In Ontario a person is entitled to change his/her mind and revoke his/her will.² There are a number of ways to revoke a Will. One such way is for the testator to burn, tear up or otherwise destroy it or by having some other person do so in his or her presence and by his or her direction with the intention of revoking the Will. But, sometimes there is no witness or proof that any such destruction took place. That begs the question – what happens if after the testator dies no one can find the Will and no one has knowledge that it was destroyed?

As one learned author stated,

“… a presumption of destruction, animus reovcandi arises when a destroyed or mutilated will is found among the testator’s papers on his or her death. A similar inference results also when it is shown that the testator’s will was last traced to his or her possession but cannot be found on his or her death. The presumption is well established, but providing that the fullest inquiries for the lost will were made, is a precondition for a court to apply the presumption.”³

The Ontario Superior Court dealt with this issue in Levitz v. Hillel Lodge Long Term Care Foundation [“Levitz”].

In this case, Mrs. Stoller, a 96 year old woman bequeathed her $7,000,000 estate to the Hillel Lodge Long Term Care Foundation. No one could find the Will and her niece and nephew relied on the presumption that it was destroyed to claim that an intestacy resulted and that they were entitled to the entirety of the estate.⁴ Let’s see how the court dealt with this issue.

In order for the Hillel Lodge Long Term Care Foundation [“Hillel”] to retain their inheritance, they would have to

i. Provide proof that the will was duly executed,

ii. Provide evidence tracing possession of the will to the date of the testatrix’s death,

iii. Provide proof of the contents of the will, and

iv. Rebut the presumption that the will was destroyed by providing sufficient evidence to prove, on the balance of probabilities, that the testator did not intend to destroy the will or revoke it.

In this case there was uncontroverted evidence that the Will was signed before two independent witnesses. There was evidence showing that the testatrix kept the original will and affidavit of execution. There was also proof of the contents of the will, as the drafting solicitor had kept a copy in his file. Thus, the case turned on whether the presumption of revocation could be rebutted.

The factors the court took into account in deciding whether Mrs. Stoller had intended to destroy and revoke her will were drawn from a decision of the Alberta Court of Appeal called Goold Estate v. Ashton. The court considered:

i. Whether the terms of the will were reasonable;

ii. Stoller’s relationship with Hillel;

iii. Whether Mrs. Stoller’s personal effects were destroyed prior to the search for the will being carried out;

iv. Stoller’s nature and character in taking care of her personal effects;

v. Whether there were any dispositions of property during Mrs. Stoller’s lifetime which confirm or contradict the terms of the copy of the will sought to be probated;

vi. Statements made by Ms. Stoller which confirmed or contradicted the terms of distribution set out in the will;

vii. Whether Mrs. Stoller was of the character to store valuable papers, and whether Mrs. Stoller had a safe place to store the papers;

viii. Whether there is evidence that Mrs. Stoller understood the consequences of not having a will and the effects of an intestacy; and

ix. Whether Mrs. Stoller made statements to the effect that she had a will.

The Ontario Superior Court considered each of these factors and held that the presumption was rebutted – the court did not believe that Mrs. Stoller intended to revoke her will. One particularly persuasive piece of evidence seems to have been that Mrs. Stoller told a friend in April, 2016, that she expected there would be no delay in her admission to the Hillel Lodge retirement community because she was leaving her entire estate to Hillel. This seems to be the corroborative evidence the court required to rebut the presumption that the Will was destroyed.⁵

Given that the presumption was rebutted, the court permitted probate to proceed as there was sufficient proof proving the contents of the lost will and its execution. Hillel received the entirety of the estate.

What is the take-away from this court decision? In law a presumption is a starting point for the discussion. Effectively, it means that if both sides present evidence such that neither side proves its case the presumption holds and the court rules accordingly. It is rare, however, that litigants fight to a complete draw. It is incumbent on each party to lead trump and prove their case. That’s what Hillel did here and that’s why they rebutted the presumption of revocation and were able to probate the lost will.