Estates

Rebutting The Presumption Of Will Revocation in Estate Litigation

Written on behalf of Meridian Law Group on August 10, 2023
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In British Columbia, an individual may revoke a will in many ways. Based on this and the assumption that individuals maintain their important documents in a safe place, there is a presumption in common law that if a will cannot be located, it is assumed that the testator intended to revoke it. However, this presumption may be rebutted with evidence. If the presumption is successfully rebutted, a copy of the will may be submitted for probate. 

A recent decision from the Supreme Court of British Columbia addressed this issue.

How to Revoke a Will in British Columbia

It is possible to revoke a will in several ways as set out in section 55(1) of the Wills, Estates and Succession Act (the “WESA”). Specifically, the WESA provides that an individual may revoke a non-electronic will by:

  • making a new will that satisfies the requirements as set out in the WESA,
  • making a written declaration stating that they revoke either all of or part of a will that has been made in accordance with the WESA, 
  • the will-maker, or someone else in the presence of and on the direction of the will-maker, burning, tearing, or destroying all of, or part of, the will and intending to revoke it, or
  • another act of the will-maker, or someone else in the presence of and on the direction of the will-maker, if the Court is satisfied that under section 58 of the WESA,(a) the consequence of the act is apparent on the face of the will; and (b) the act was performed with the intention of revoking all of, or part of, the will. 

The Presumption of Revocation

The presumption of revocation was summarized in the case of Morton v. Christian. In situations where a will cannot be located, in conjunction with evidence that the testator was the person who was last in possession of the will, it can lead to the common law presumption that the testator intended to destroy and revoke it. 

However, this presumption may be challenged and rebutted with evidence proving that the testator did not actually intend to revoke the will.

Deceased’s Sister Opposes The Petition Seeking Will Proven In Solemn Form

In the case of Galloway Estate (Re), the deceased (“JG”) executed a will on May 1, 2019, before he died on September 1, 2021. JG was given the will, and the law firm that prepared the will on his behalf also retained a copy. However, the will could not be located after JG’s passing, and a copy was obtained from the law firm. The will named the petitioner (“SS”) as executor, and she sought a declaration that the will be proven in solemn form and an order be made to admit the copy of the will into probate. Under the will, JG left his estate to SS.

The respondent (“JB”) was the deceased’s sister, who opposed the petition. She claimed that, based on the common law presumption of revocation, JG intended to revoke the will and died intestate. Under British Columbia law, if JG died intestate, his estate would be distributed in accordance with the intestacy rules set out in the WESA, in which case the estate would pass to JB. 

Copy of Will Obtained From Drafting Law Firm

JG had no children and no spouse at the time of his death. His parents had predeceased him, and his only sibling was JB, who had two children. JG’s mother was the godmother of SS, JG’s appointed executor. 

Following JG’s death, JB searched his property for important documents and removed several boxes of documentation from the property. JB indicated that she collected several documents from a filing cabinet but did not have personal knowledge of where JG kept his key documents and stated that she was unable to locate his will or other testamentary documents. SS also attested that a “diligent search was done of all reasonable places,” but no testamentary documents were located. 

A copy of the will was later obtained from the law firm. However, there was a dispute as to who received a copy first. There was no dispute that the copy obtained was an accurate copy of the will.

Rebutting the Presumption is “Heavy Burden”

When the Court heard the matter, the key issue was determining whether the will should be probated in place of the original will or whether the will should be deemed to be revoked. The Court was asked to determine whether the presumption of revocation was satisfied or rebutted based on evidence. 

The Court noted that rebutting the presumption of revocation on the balance of probabilities is a “very heavy burden.” It then referred to the case of Haider v. Kalugin and a non-exhaustive list of factors to consider when determining whether the presumption has been rebutted. These factors include assessing:

  • whether the terms of the will are reasonable;
  • whether the deceased continued to have good relationships with the beneficiaries under the will up to the date of death;
  • whether the personal effects of the deceased were destroyed before the search for the will being carried out;
  • whether any dispositions of property support or contradict the terms of the will;
  • whether the deceased was of the character to store valuable papers and whether the deceased had a safe place to store papers; and
  • whether there is evidence that the deceased understood the consequences of not having a will and the effect of an intestacy.

Deceased’s Sister Claims it was Unlikely that the Deceased Misplaced the Will

Upon review of the evidence, the Court noted that JB admitted that she and JG had experienced a falling out as adults and rarely had contact with each other. 

Considering the various factors relating to rebutting the presumption, JB indicated that JG kept his important documents at his property and stated that “sole evidence about how the Deceased records indicate that he kept documents he intended to keep.” Therefore, she claimed that it was unlikely that the will was misplaced or lost. She also objected to the admissibility of some evidence used to support SS’s petition.

When considering the Haider factors, the Court found that, among other things:

  • JG was not organized by nature;
  • the property did not have a home safe;
  • there was no suggestion of relationship issues between JG and SS leading up to his death;
  • the terms of the will were reasonable, particularly as JG knew that if he died intestate, his estate would pass to his sister; and
  • there was no evidence of reconciliation between JG and JB. 

Presumption of Revocation Successfully Rebutted

Based on the evidence and analysis of the Haider factors, the Court found that it would not make sense for JG to destroy his will intentionally. Thus, the Court concluded that the presumption of revocation was successfully rebutted. 

The Court also noted that the will was executed per the procedural formalities required under British Columbia law, and the will’s contents were reasonable. 

The Court held that the will was affirmed in solemn form, and the copy was to be admitted to probate, with SS being granted probate and the right to administer JG’s estate. Further, JB was ordered to transfer all access to the estate accounts to SS. 

For Reliable Advice on Will Challenges in Vancouver, Contact the Lawyers at Meridian Law Group 

By offering clients comprehensive advice and creative solutions to their legal problems, Meridian Law Group helps clients navigate will disputes. Our trusted estate litigation lawyers provide comprehensive advice on various aspects of estate litigation, including will challenges. Throughout the dispute resolution process, we work to protect clients’ rights and aim to position them for the best possible outcome. 

Meridian Law Group has developed a reputation for legal excellence since 1988. We are conveniently located in downtown Vancouver and proudly represent clients throughout West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. If you are involved in an estate dispute, contact us online or call us at (604) 687-2277 to schedule a consultation with a member of our wills and estates team.