Presumption in an Application to Probate a Copy of a Will if the Missing Original was Last in the Possession of a Will-Maker Who Lost Capacity

The general rule is that an executor must have the original will in order to obtain a grant of probate in British Columbia, but it is possible to probate a copy or obtain a grant of probate based on other evidence of the will if the original goes missing. But as I have written before, if the will was last in the possession of the will-maker, there is a presumption that the will-maker destroyed the original will in order to revoke. The presumption may be rebutted with evidence that the will-maker would not have intended to revoke the will.

What happens if the missing original will was last in the possession of the will-maker, but the will-maker’s mental functioning declined to the point where she was no longer capable of making or revoking a will?

Mr. Justice Jenkins considered this issue in the recent case of Polischuk Estate v. Perry, 2014 BCSC 1089.

Nettie Polischuk signed her will on August 31, 2004. She outlived her husband, and had no children. She appointed her lawyer, Steven Wong, as her executor and left most of her estate to her sister. Because she appointed Mr. Wong as executor and left a portion of her estate to him in lieu of executor fees, he referred her to another lawyer for independent advice and to witness the will.

She was later diagnosed with Alzheimer’s decease in 2010 and on February 27, 2010, she was declared incapable of managing her affairs, and the Public Guardian Trustee of British Columbia took over her finances.

After her death on December 20, 2012, her executor was unable to find her original will.

Mr. Wong brought a petition to ask the Supreme Court of British Columbia to probate an unsigned copy of the will he drafter for her in 2004. Three of Ms. Polischuk’s nephews, who were not beneficiaries of the 2004 will, but who would receive a share of her estate if she died without a will,

Mr. Justice Jenkins found that the copy of the will reflected the terms of the will that Ms. Polischuk signed.

There was some evidence that she had contemplated making a change to her will to appoint a friend as an alternate executor, but no evidence that she wanted to change the beneficiaries of her will or revoke it.

Mr. Justice Jenkins noted the presumption that if a missing will was last in the possession of the will-maker, the she destroyed it to revoke it. But he held that there is a different presumption if the will-maker lost capacity to revoke a will. He wrote:

[63]         In this case, the evidence shows that Nettie was mentally stable on August 31, 2004, but as of February 9, 2010, she was declared to be mentally unable to manage her financial and legal affairs due to Alzheimer’s disease. We do not know at what exact point between these two dates Nettie became unable to manage her affairs due to her cognitive impairment.

 [64]         In Re Broome, [1961] M.J. No. 51 (C.A.), 29 D.L.R. (2d) 631 at p. 633 [Re Broome], Freedman, J.A. said:

It seems to me that fundamentally this case turns on the question of onus of proof. No one saw the testator destroy his will. In fact it may never have been destroyed. It has simply not been found after very extensive searches therefor. In such circumstances - leaving aside for the moment the question of insanity - there is a prima facie presumption that the testator destroyed the will animo revocandi . Such presumption, however, may be rebutted by evidence, which, however, must be clear and satisfactory: 34 Hals. 2nd ed., p. 87. The intervention of insanity after execution of the will, however, creates a different situation. That an insane person lacks the legal capacity to revoke his will is unquestionable. If Reuben Broome destroyed his will while insane such destruction would not constitute revocation of the will. On that both counsel agree. But since there is no evidence as to when he destroyed his will - assuming he did so - there is a sharp divergence between counsel as to what presumptions apply and to who must bear the burden of proof.
[Emphasis added.]

 [65]         And continuing at p. 634, Freedman, J.A said :
The rule places on the party alleging revocation the burden of showing that the destruction occurred while the testator was of sound mind.

 [66]         The preceding law establishes that the burden of proof is, in most circumstances, on the party asserting that the will was in fact lost and not destroyed. Re Broome, however, notes that the burden of proof shifts in the circumstance where a person becomes mentally incapable/unstable. When that situation arises, the evidentiary burden shifts to the party alleging that the testator destroyed the will to prove that the destruction occurred while the testator had capacity.

Mr. Justice Jenkins held that the nephews opposing the petition to probate the copy had not met the burden on them of proving that Ms. Polischuk had destroyed the will in order to revoke it.

He also found that it was unlikely that she would have revoked it. The terms were reasonable. She did not place the will in her safety deposit box, and it could have gone missing in her house. She had a long history of getting Mr. Wong’s advice, and it is unlikely she would have revoked it without going to a lawyer. There was evidence that she understood the effects of dying without a will, and she wanted to avoid that. She did not dispose of property in a manner inconsistent with the will. She told a witness in 2010 that she had a will (although by then her functioning was impaired). There was some evidence that a will was sent to the Public Guardian and Trustee’s office, although no will was found.

Accordingly, Mr. Justice Jenkins granted probate of the unsigned copy of the will