Missing will leads to presumption of intestacy by Canadian court

Tuesday, 27 February 2024
The Supreme Court of British Columbia has found that a missing will was either intentionally or accidentally destroyed, lost or stolen and so the testator must be presumed to have died intestate.

Rosemary Finsant (the testator) died in 2021. Searches of her property failed to reveal a will, although it was known and accepted that she had made a valid will in 2001 and was the last known person to have possession of it.

This will made the testator’s grandniece, Megan Beggs (the applicant), the sole beneficiary of the residue of the estate. The applicant accordingly applied to the court to give effect to the 2001 will; however, this was contested by the testator’s niece, Rhonda Schicchi (the respondent), who asked the court to confirm the testator died intestate.

The court heard that the respondent, who was also the administrator of the estate, searched extensively for the will and contacted the notary who had originally made the will with the testator. The notary was able to produce an unsigned copy showing that the applicant was the sole beneficiary of the residue; however, she confirmed that the executed document had been given to the testator. The respondent therefore proceeded to administer the estate on the basis of intestacy.

As the will was missing, the “presumption of destruction” arose and it fell to the applicant to succeed in rebutting this presumption.

In examining the case law around the presumption, the court noted: “The ultimate issue is whether, on a balance of probabilities, the will was more likely to have been deliberately destroyed because the testator had a change of heart or was more likely lost, stolen or accidentally destroyed…What the presumption adds is the commonsense point that we would expect a person who wants a will to be executed to keep it where it can be found when they die. In the absence of a contrary reason, this is the more inherent probability. The application of the legal standard and burden of proof will take this into account.”

It went on to observe that if a will in the deceased's possession cannot be found after a reasonable search, “the quality of evidence necessary to support the inference that it was destroyed intentionally is less than that required to support the inference that it was lost or inadvertently destroyed.”

The court followed factors set out in prior case law in deciding if the presumption had been rebutted, including:

  • whether the terms of the will were reasonable;
  • whether the testator continued to have good relationships with the beneficiaries in the copy of the will up to the date of death;
  • if personal effects of the deceased were destroyed prior to the search for the will;
  • the nature and character of the deceased in taking care of personal effects;
  • dispositions of property that support or contradict the terms of the copy;
  • statements made by the testator confirming or contradicting the terms of distribution set out;
  • whether the testator generally stored valuable papers and had a safe place to do so;
  • whether there is evidence that the testator understood the consequences of not having a will and the effects of intestacy; and
  • whether the testator made statements to the effect that they had a will.

The judge noted, among other factors, the fact that the testator seemed conscientious about organisation and stored documents in a filing cabinet. Moreover, the court found that suggestions that the will may have been stolen or inadvertently destroyed during the search and clean-up were “speculative”.

“The most probably inference was that there was no will to be found,” the judge ruled. “We do not have much to go on other than the presumption of destruction. [The testator] was, based on the evidence, a person of sound mind and ordinary conscientiousness about important documents. We do not know why she would have destroyed the will without creating a new one, but then we do not really know why she created it in the first place. She was not a communicative person in this respect. Common law presumptions are not as satisfying a basis for finding facts as actual evidence but they have the merit of providing some baseline for decision-making when certainty is not attainable.”

Accordingly, the court ruled that the applicant had not rebutted the presumption of destruction and therefore denied her application (Re Finsant Estate, 2024 BCSC 217).


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