What Happens When a Will Is Damaged or Lost?

This eLawTalk.com article discusses what happens when a will is damaged or lost in British Columbia.


Last will and testament

Sometimes a will can get damaged or lost.  This issue is dealt with differently than if a will was never created.

How are damaged or lost wills handled in BC?

In section 14(1) of the Wills Act it states that a will is invalid once the creator rips it, burns it, or otherwise destroys it with the intention of revoking the decisions made within the will. In cases where loved ones know a deceased party created a will but cannot find that will upon their death, it is assumed that the deceased person intentionally discarded or otherwise revoked the will.

If you have knowledge of a will missing due to a house fire or other unintentional destruction, you can file an application in court to prove your knowledge of the destroyed or missing will. If you believe someone else sabotaged or destroyed the will because they did not like what the deceased party stated in the will, you can file with the court to bring that evidence to light as well.

A declaratory order can be given by the court if you have the legitimate content of the will, and you can prove that the deceased party willingly created that version of the will while in a competent mental state. [1] In this case, you are essentially challenging the idea that the deceased party willingly destroyed or otherwise revoked the will.

Since the deceased party is no longer here to voice their intentions, and the only voice they may have left behind is missing or destroyed, it is in the hands of the courts to do what they believe the deceased party wanted. This is decided on a case-by-case basis with the facts of each case considered. The following information will give you a general idea of what you can expect to occur if you file a court application in the case of a missing, damaged, or destroyed will.

The Will Is Missing

Lefebvre vs. Major set the standards for proving the contents of a missing will are legitimate and legal. The testator in this case went before a lawyer and issued a will leaving his entire estate to his sister. This was done in the presence of a witness, and the will was stored at a bank. At some point the will was sent to the testator, and it was believed that it was burned along with other paperwork due to concerns of spreading infection.

The Supreme Court of Canada decided that the estate could still be passed to the testator’s sister, since the relationship between the testator and sister did not change prior to the testator’s death and there was a valid reason the will went missing.

Due to this court case, you must now prove three criteria if you want to have a missing will deemed valid. [2]

1. The deceased person executed the will willfully and in competent mental state.

2. The contents of the will presented in court were the original contents executed by the deceased party.

3. Proof the deceased party did not intentionally revoke the contents of the will.

The Will is Damaged

The standards for determining the validity of a will that was torn up by its creator were set by the Re Norris case, which was decided by the British Columbia Supreme Court. [3] The testator in this case revealed his will to his live-in girlfriend and gave his girlfriend a key to the locked box where he kept the will. Upon the testator’s death, the will was found in the envelope inside the locked box where he kept it during his life. The problem was that the will had been torn into small pieces.

The court ruled that the will was still valid, since it remained in the envelope inside the locked box where it was kept during the testator’s life. The court reasoned that the testator would have discarded the will entirely if he meant to revoke its contents. The will was pieced back together and was enforced.

In these cases, the court must put themselves in the deceased party’s shoes and determine what they more than likely intended to happen with their will.

The Will is Destroyed

Cases involving destroyed wills can be complicated, because the court must determine whether the destructive force was intended to make the will invalid. The Re Adams case involved a testator who prepared a will with the assistance of a lawyer, and later asked the same lawyer to destroy the will. The lawyer advised the testator to destroy the will themselves, and the will was found scribbled over in heavy, dark ink upon the testator’s death. [4] The court determined that the scribbling over the will was done with the intention of making the will invalid, and it was not enforced.

What is Best Practice?

The job of the court system in the case of a missing, destroyed, or damaged will is to balance all probabilities and make a ruling that they feel was likely the intention of the deceased party. Your best practice should be to file your will with Vital Statistics, and keep your will updated over time. Make sure there is an accurate, clear, and undamaged will available in a safe place because you never know when it may be needed.


Endnotes

[1] Wills Act, RSBC 1996, c 489.
[2] Lefebvre v. Major, [1930] S.C.R. 252
[3] Re Norris [1946] 4 DLR 441 (BCSC).
[4] Re Adams [1992] All ER 97 (Ch D).