Presumption of Destruction – Estate Litigation in B.C.

While it might be trite to say, wills are the central documents around which most estate litigation disputes arise. Estate litigation in British Columbia frequently involves questions regarding the validity of wills, changes to wills, the creation of wills and variation of wills. However, another related issue arises when the original will cannot be found and when a litigant claims that a testator had meant to revoke a previous will.

In the decision of Horton v. Bruce, 2017 BCSC 712, the British Columbia Supreme Court was asked to consider an argument by a Plaintiff that a deceased relative had intended to revoke her will made in 2003 based on the evidence from a draft will found dated in 2011. The Court summarized the issue as follows:

[42] The main issue to be determined is whether Ms. Shepherd’s 1993 Will was revoked by the 2011 Draft, either through the common law presumption of destruction or through the curative provisions of s. 58 of WESA being applied to cure the provision of the 2011 Draft that revokes all of Ms. Shepherd’s previous wills

The test for applying the common-law presumption of destruction was explained as follows:

[44] At paras. 13-14 of Haider v. Kalugin, the Court enumerates some of the factors to be considered in deciding whether the presumption applies, and if so, whether it has been rebutted:

[13] Some of the factors considered in determining whether the presumption has been overcome are:

  • whether the terms of the Will itself were reasonable: Pigeon Estate v. Major, 1930 CanLII 4 (SCC), [1930] S.C.R. 252 (S.C.C.);
  • whether the testator continued to have good relationships with the beneficiaries in the copy of the Will up to the date of death: Pigeon, supra;
  • where personal effects of the deceased were destroyed prior to the search for the Will being carried out: Pigeon, supra;
  • the nature and character of the deceased in taking care of personal effects: Pigeon, supra;
  • whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated: MacBurnie v. Patriquin, supra; Anderson v. Kahan Estate, [2006] B.C.J. No. 716 (B.C.S.C.);
  • statements made by the testator which confirm or contradict the terms of distribution set out in the will: Bobersky Estate, supra, Anderson, supra, Holst Estate v. Holst, [2001] B.C.J. No. 1560 (B.C.S.C.), Re Green Estate, [2001] A.J. No. 1253 (Alta. Q.B.);
  • whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers: Bobersky Estate, supra, Brimicombe v. Brimicombe Estate, 2000 NSCA 67 (CanLII), [2000] N.S.J. No. 157 (N.S.C.A.);
  • whether there is evidence that the testator understood the consequences of not having a Will, and the effects of intestacy: Bobersky Estate, supra;
  • whether the testator made statements to the effect that he had a will: Bobersky Estate, supra.

[14] However, the presumption of revocation does not apply where the Will cannot be traced to the possession of the testator: Brimicombe v. Brimicombe Estate, supra, at paragraph 7.

When considering whether a Will has been revoked, accordingly, those factors are important.

If you are involved in an estate dispute and wish to challenge the validity of a will or seek a variation of its terms, contact the Kushner Law Group to schedule a consultation.

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