Missing Original Will: Whitehead Estate

After Mary Josephine Whitehead died in 2008, a “trued up” copy of her will, dated December 21, 1979, was found among her papers. This document was a copy of a will, with Ms. Whitehead’s name and those of the witnesses were printed in quotation marks. This was clearly not an originally signed will, and no one has ever found an original.

The lawyer who drew the will has died. He had kept some original wills for his clients, and he had transferred these to another lawyer for safe keeping, but Ms. Whitehead’s will could not be found among them.

No one knew the identity of the witnesses to the will.

Ms. Whitehead had not had a wills notice filed with Vital Statistics indicating that she had made the will.

In Whitehead Estate, 2010 BCSC 348, the Supreme Court of British Columbia was asked to decide whether to the “trued up” copy of the will could be used to prove that Ms. Whitehead had a valid last will. If so, her estate could be distributed according to the terms of the 1979 will. If not it would be distributed to her next of kin, under the Estate Administration Act in B.C.

Mr. Justice Bracken set succinctly summarized British Columbia law on proving a lost will at paragraph 20 as follows:

The test for proving a lost will requires proof of the due execution of the will; particulars tracing possession of the will to the date of death, and afterwards if the will was lost after death; rebuttal of the presumption that the will was destroyed by the testator with the intention of revoking it; and proof of the contents of the lost will: Sorkos v. Cowderoy, [2006] O.J. No. 3652 (C.A.).

The difficulty with proving the copy of the will in this case is that there was no evidence that the will was properly signed. The lawyer involved was deceased, and the witnesses were unknown.

Accordingly, Mr. Justice Bracken held that the will was not proven. He wrote:

[26] In this case, there is no evidence to identify the witnesses to the execution of the will nor is there any evidence to show that the will is a true copy of the original will. While the copy presented has all of the characteristics of a legitimate copy of an original will, on the authorities it cannot be presumed that the original was properly executed or that the copy presented is a true copy. The authorities require proof of both.

[27] It may be that the necessary proof can be presented through means other than a witness to the execution of the will. For example, proof of the usual practice followed by a solicitor or legal assistant that a will was only “trued up” once it had been properly executed and compared to the original may be sufficient to show that it is in fact a true copy. But some evidence is necessary to establish the necessary facts and here there is none. There is no witness available or even identified to say that the will was properly executed nor is there anyone to attest to any other evidence to establish that the copy of the will is a true copy as that term is understood in law. Even if the standard of proof is lower than a balance of probabilities there is an absolute absence of any evidence whatsoever in this case.

Ms. Whitehead’s estate will be distributed to her next of kin in accordance with the Estate Administration Act, on the basis that she died without a will.