Monday, April 01, 2013

Missing Original Will: Thierman Estate v. Thierman

Following his death on August 25, 2010, George Patrick Thierman’s children were unable to find his original will. They knew he signed a will on October 27, 2006, a copy of which was in the dresser drawer of his bedroom. Did he destroy is original will in order to revoke it? Or did he simply lose it?

George Thierman had seven children, two of which, David Thierman and Andrew Thierman, lived with him for at least twenty years before his death. They were financially dependant on him.

In his will, George Thierman appointed his son Patrick Thierman as his executor, and provided that his estate would be held in trust for the benefit of his son David Thierman during his lifetime. Anything left after David Thierman’s death would be divided equally among George Thierman’s other six children.

After George Thierman signed his will, his lawyer mailed the will and her bill to him. He paid the bill. He told his lawyer that he was going to keep his original will in his safety deposit box at his bank, and the bank records show he accessed the safety deposit box on December 5, 2006.

After George Thierman became ill, he became dependent on David Thierman to assist him. He complained that David Thierman was not feeding him properly.

George Thierman accessed his safety deposit box on August 3, 2010. When his Patrick Thierman later checked the safety deposit box, the will was not there.

The evidence before Mr. Justice Ehrcke in Thierman Estate v. Thurman, 2013 BCSC 503, was that George Thierman was an intelligent and well organized man.

There is a presumption of law in British Columbia that when an original will that is missing can be last traced in the possession of the will-maker, he destroyed it with the intent of revoking it. This is a presumption only, and may be rebutted by evidence that the will-maker did not intend to revoke the will.

Mr. Justice Ehrcke quoting from a previous decision, Haiderv. Kalugin, 2008 BCSC 930, set out some of the factors the courts have considered as follows:

[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] 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] 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.

Mr. Justice Ehrcke applied the presumption that the will was revoked. Mr. Justice Ehrcke found it unlikely that George Thierman would have lost the will, given that he was well organized. It was more likely, that unhappy with the care David Thierman was providing him, he took it out of the safety deposit box and destroyed it.

In the result, the estate will be divided equally among George Thierman’s children in accordance with the intestacy provisions of the B.C. Estate Administration Act.

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