In a recent decision, the Supreme Court of British Columbia considered a high-conflict dispute over whether a will had been destroyed (and therefore revoked) shortly before the will-maker’s death. The decision provides important guidance for estate litigation in Vancouver and across British Columbia, particularly where allegations of revocation arise in the context of cognitive decline, family conflict, and missing original wills.

The case, Jugovits Estate (Re), addresses two central questions:

1. Was the will physically destroyed with the intention of revoking it?
2. If so, did the deceased have the requisite testamentary capacity to revoke it?

The court ultimately admitted a copy of the will to probate and rejected the allegation that the deceased died intestate. The reasons offer a careful review of the law under the Wills, Estates and Succession Act (“WESA”) and reinforce the evidentiary burden required to prove revocation.

Competing Petitions Over a Missing Original Will

The deceased died on November 22, 2023, at the age of 89. He had executed a will dated May 26, 2021. Under that will:

• Four stepdaughters received specific cash gifts; and
• His biological son received the residue of the estate, including a Surrey home valued at over $1.3 million.

The executor named in the will, his stepdaughter, sought to probate a copy of the will because the original could not be located.

The deceased’s son alleged that approximately one month before death, he witnessed his father tear up the original will outside Surrey Memorial Hospital. If proven, that destruction would amount to revocation under s. 55(1)(c) of WESA, meaning the deceased died intestate. As the sole biological child, the son would inherit the entire estate.

The court was therefore required to determine:

• Whether the will was destroyed;
• Whether it was destroyed with the intention of revoking it; and
• Whether the deceased had the capacity to revoke it.

The Legal Framework: Revocation Under WESA

Section 55(1)(c) of WESA provides that a will may be revoked by burning, tearing, or destroying it with the intention of revoking it.

Two elements must be proven:

1. Physical destruction of the will; and
2. Intention to revoke at the time of destruction.

At common law, when a will was last known to be in the testator’s possession and cannot be found after death, courts may apply the “presumption of revocation.” However, that presumption is rebuttable and will not operate where there is evidence of mental incapacity at the relevant time.

Importantly, the burden shifts depending on the circumstances. In this case, because there was compelling evidence of progressive dementia, the presumption did not apply. Therefore, the son bore the burden of proving revocation on a balance of probabilities.

Testamentary Capacity to Revoke a Will

The court confirmed that the legal test for testamentary capacity applies not only to making a will, but also to revoking one.

A will-maker must understand:

• The nature and extent of their property;
• The natural objects of their bounty;
• The effect of the testamentary act; and
• How those factors relate to one another.

The son argued that revoking a will requires a lower level of capacity than making one. The court rejected this argument, holding that there is no lesser standard for revocation.

If a person lacks the capacity to appreciate the consequences of revocation, including that their estate would pass under intestacy rules, revocation cannot be legally effective.

Evidence of Alzheimer’s and Incapacity

The deceased was suffering from Alzheimer’s disease. Medical records from Surrey Memorial Hospital showed progressive dementia and behavioural and psychological symptoms. They also disclosed the deceased’s physical frailty, including “claw hands” and limited grip strength, as well as a psychiatrist’s formal opinion that the deceased lacked capacity to make health care and financial decisions.

A letter dated October 26, 2023, confirmed that the deceased lacked capacity due to a major neurocognitive disorder.

While a diagnosis alone does not eliminate testamentary capacity, it is highly relevant. The court carefully reviewed both medical evidence and lay evidence, including recorded family conversations.

Alleged Destruction of the Will

The son claimed he witnessed the deceased tear up the will following a heated telephone conversation with his lawyer. A friend of the son also gave evidence that she saw the deceased rip up unidentified papers.

However, the court found several significant problems:

• The only evidence that the document was the original will came from the son, an interested beneficiary.
• There were inconsistencies in his affidavits about dates.
• The deceased was physically frail, raising doubt as to whether he could tear documents.
• Recorded conversations suggested tension and potential influence.

Most significantly, two witnesses testified that after the deceased’s death, the son appeared to have the original will in his possession and described it as signed in ink. The son did not deny making those statements.

The court found this evidence undermined his credibility and raised serious doubt about whether any destruction had occurred.

Capacity and Intention to Revoke

Even if the will had been torn, the court found insufficient evidence that the deceased had the capacity to revoke it.

Recorded conversations showed that the deceased was confused about documents and had limited independent participation. There was heavy involvement and prompting by the son, and the deceased’s statements largely focused on his desire to leave the hospital and return home.

The court emphasized that routine questions (such as age or location) do not establish testamentary capacity. There must be evidence that the deceased appreciated the consequences of revocation and the effect on beneficiaries.

Unlike other cases where experienced estate lawyers assessed capacity contemporaneously, no such evidence existed here. The court concluded that the son failed to establish, on a balance of probabilities, that the deceased had the requisite capacity to revoke the will.

Alleged Revocation Failed on Grounds of Destruction and Incapacity

The court declared that the copy of the will was valid and was admitted to probate in solemn form. Further, the executor was granted costs from the estate.

The allegation of revocation failed on both destruction and capacity grounds.

Meridian Law Group: Top-Tier Vancouver Estate Litigation Lawyers Representing Clients in Will Disputes

If you are involved in a dispute over the validity of a will, alleged revocation, missing original documents, or concerns about mental capacity, experienced legal guidance is essential. The estate litigation team at Meridian Law Group represents executors, beneficiaries, and disinherited family members in complex will disputes.

If you have concerns about a will’s validity or believe a revocation was improperly alleged, contact Meridian Law Group at (604) 687-2277 or reach out online.