Missing Original Will

What happens if you find a photocopy of a deceased person’s will, but cannot find the original?

In British Columbia, there is a presumption that if the original will was in the possession of the deceased, but is missing, the deceased revoked the will. If, however, you have a copy of a will, and can satisfy the court that the will was lost, rather than revoked, you may be able to probate the copy.

This issue came up in a decision released a couple of weeks ago. The Supreme Court of British Columbia dealt with a dispute among siblings in Andersson v. Khan, 2006 BCSC 521. This case involved a contest over two alleged wills, with allegations of forgery and much unpleasantness. In this post, I am going to confine my discussion to the issue of the missing original will.

Dr. Khan and his wife made mirror image wills in 1982 in which each left everything to the other. If, on death of one, the other spouse was not alive, each will provided that their son Sharaf Khan would receive Dr. Khan’s car, their house and land, and the contents of their house, with the residue of the estate going to another son, Insha Khan. They did not leave anything to any of their other four children in the 1982 wills.

In 1982, Dr. Khan and his wife also transferred their house into a joint tenancy with Sharaf.

Mrs. Khan died before Dr. Khan. After his wife’s death, Dr. Khan severed the joint tenancy on the house, so that he and Sharaf then held title as tenants in common. (In a joint tenancy, on the death of one joint tenant, the other takes title to the whole of the property by right of survivorship. The effect of Dr. Khan’s severance of the joint tenancy was that on his death, a half interest in the house would fall into his estate, instead of the title passing to Sharaf by right of survivorship.)

After Dr. Khan’s death Sharaf and Insha could not find the original will, but were able to probate a copy. The plaintiff, their sister Sari Andersson, challenged this.

Mr. Justice Williams set out the law as follows:

…a will may be presumptively revoked if the party propounding the will cannot provide the original will and fails to prove that the will was merely lost and not destroyed. In Sigurdson v. Sigurdson, [1935] 4 D.L.R. 529 (S.C.C.) at 4, Lamont J. cited this principle as follows:
Where a will duly executed, traced to the testator’s possession and last seen there, is not forthcoming on his death, the presumption is that it was destroyed by himself. To rebut it there must be sufficient evidence that it was not destroyed by the testator animo revocandi.

[38] This principle was later applied in Kumar v. Kumari, [1993] B.C.J. No. 108 (Q.L.), in which the original of the deceased’s last Will and Testament could not be found. The plaintiff sought to have an original copy of the will admitted into probate. The court stated at 8:

'The plaintiff is faced with rebutting the presumption of revocation. This principle of law provides that where a will is shown to have been in the custody of a testator, and is not found on his death, the presumption arises that the will has been destroyed by the testator for the purpose of revoking it.'

[39] The court went on to stipulate at 9, that the person propounding the will has a burden of proof that persists throughout the whole trial to satisfy the court at conclusion of the evidence that the will is in fact lost and was not destroyed by the testator with the intention of putting an end to it.

[40] Finally, where the presumption of revocation applies to presume that the testator destroyed the will, evidence of the testator’s actions following the making of the will may be adduced to show a continued intention to adhere or not to adhere to the dispositions made in the will: Kumari, supra at 16; Re Matt Estate (1954), 11 W.W.R. (N.S.) 28 (Man. C.A.).

In Andersson v. Khan, Mr. Justice Williams found that the evidence did not rebut the presumption that Dr. Khan revoked the 1982 will. Mr. Justice Williams found that it was significant that Dr. Khan severed the joint tenancy with Sharaf. If Dr. Khan had intended for the 1982 will to remain in effect, with the house to go to Sharaf, Dr. Khan’s decision to sever the joint tenancy would not make sense. There was also evidence of tensions between Dr. Khan and Sharaf.

Mr. Justice Williams, revoked the grant of probate of the 1982 will, and held that Dr. Khan died without a valid will. Williams J. ordered that the estate be divided equally among all six of Dr. Khan’s children in accordance with section 84 of the Estate Administration Act, R.S.B.C. 1996, c.122.

[Since I wrote this post, the British Columbia Court of Appeal has dismissed an appeal by plaintiff. The appeal is at 2007 BCCA 532. The appeal did not deal with the issue of whether the 1982 will was valid, but dealt with other issues between the parties. I have also edited this post to clarify that the presumption applies if the will was in the possession of the testator before it went missing.]