Sunday, May 01, 2011

Destroyed Will

In British Columbia, there are different ways you can revoke your will. The most common way is to make a new will with a clause that says you revoke your previous wills. Another way to revoke a will is to destroy it, either yourself, or by directing someone else to destroy it for you, but if you direct someone else to destroy it, they must do so in your presence.  To revoke a will by destruction, you must intend to revoke it. If you accidentally tear up your will, perhaps thinking you are tearing up a different document, then the will is not revoked.

But what happens if someone dies, their will is found torn to pieces, but nobody knows the circumstances of the destruction? Nobody even knows who tore it up, let alone whether the now deceased person had intended to revoke it.

Mr. Justice Barrow, in Jorsvick Estate, 2011 BCSC 528, dealt with this issue. Mrs. Jorsvick died on July 31, 2010. When she died, her husband was in a care facility, and was not capable of managing his own affairs. They had two children, Scott Jorsvick and Linda Samis.

Mrs. Jorsvick had made a will in 2005, in which she had left half of the residue of her estate to Scott Jorsvick, one-sixth to her daughter Linda Samis, and one-sixth to each of Linda Samis’ children.

In 2009, Mrs. Jorsvick had a disagreement with her son about her husband’s bank accounts. In 2010, she instructed her lawyer that she wanted to change her power of attorney to appoint her daughter in place of her son. She signed a revocation of the power of attorney to her son, and the new power of attorney in the presence of her lawyer on July 30, 2010—the day before she died. She told her lawyer that she wanted to meet with him the following week to discuss changes to her will, but died before the meeting could take place.

Mrs. Jorsvick kept her important documents in a locked filing cabinet in her home. But after her death, her son could not find the will in the cabinet. Her daughter later found an envelope containing the will torn to pieces behind a chest of drawers at her father’s care facility.

The question before the court was whether or not Mrs. Jorsvick revoked the will by destruction, in which case she would have died without a will, and her estate would go to her husband and two children in the proportions set out in the Estate Administration Act. If not, then the will would govern the distribution of Mrs. Jorsvick’s estate.

There is a presumption in British Columbia that if a destroyed will is found among the deceased’s papers, or in a place it would normally expected to be found, then the deceased had destroyed the will in order to revoke it.

But in this case the torn will was not found among Mrs. Jorsvick’s papers. Nor would it make sense for her to keep the will, or the remnants of the will, at her incapacitated husband’s care facility.

Accordingly, Mr. Justice Barrow found that the presumption that Mrs. Jorsvick destroyed the will intending to revoke it does not apply.

Mr. Justice Barrow also found it significant that when she met with her lawyer the day before she died, and said she wanted to change her will, she did not mention that she destroyed her will. If she had destroyed her will, she would likely have mentioned that fact. She spoke as if she still had a will.

The Court found that Mrs. Jorsvick did not revoke her 2005 will, and held that it remained her valid will.

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