Passing away without a Will
By Amanda Le, LL.B with Adam Soloman, student at law | July/August 2019
Dealing with a contentious estate battle is the last thing you need when grieving the loss of a loved one. There are a few important safeguards to avoid your loved one’s final wishes from being challenged in court. While most people appreciate the importance of having a valid Will, many may not understand what happens when you die without a Will in place.
So long as your loved one has legal capacity, the law in Ontario allows the person to change their mind and revoke the Will at any time. There are a few ways a Will can be revoked:
- the testator can burn, tear up, or otherwise destroy the Will;
- the testator can also direct another person to the destroy the Will in his or her presence with the intention of revoking the Will; or,
- the Will can be lost.
In some cases, there is no witness or evidence that the testator destroyed the Will with the intent of revoking it.
What happens if your loved one’s Will is lost?
There is a general presumption that once a Will is lost or destroyed, it has been revoked. If a Will is revoked, the deceased’s estate will be distributed as though that person died without a Will. If your loved one’s original Will is lost, you will need proof to rebut the presumption that it has been revoked.
The court in Levitz v Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253, [Hillel Lodge] provided some guidance on the steps required to uphold a lost Will. In that case, Sarah Stoller, a 96-year-old woman, passed away with an estate valued at nearly $7,000,000.
Ms. Stoller’s Will bequeathed a brass candelabra to the Hillel Lodge Long Term Care Centre. The Will also stipulated that the Hillel Lodge Long Term Care Foundation [the “Lodge”] would be the sole beneficiary of her entire estate. In the five years before her death, Ms. Stoller had given over $85,000 to the Lodge.
Ms. Stoller was a very organized and meticulous person. She sought out a lawyer in 2004 to draft her Will. In 2007, she made handwritten notes that said that all beneficiaries other than the Lodge should be eliminated from her Will.
In 2010, Ms. Stoller signed an updated Will. She named Ms. Levitz from the Lodge as her executrix and estate trustee and named her lawyer as Power of Attorney for Property and Personal Care. The original Will was to be left in her safety deposit box. A copy of the Will was left with her lawyer. However, upon Ms. Stoller’s passing, no one could find the original Will.
Ms. Stoller’s niece and nephew relied on the presumption that the Will had been destroyed to claim that Ms. Stoller died intestate. If a person dies intestate, the Succession Law Reform Act sets out how that person’s property will be distributed amongst their next of kin.
Ms. Stoller’s niece and nephew claimed that they were entitled to the entirety of her estate. They challenged the bequest to the Lodge and claimed that their aunt wanted to change her Will in the weeks before her passing. The court ultimately decided that there was insufficient evidence to prove Ms. Stoller intended to revoke her Will. The bequest to the lodge was upheld.
What you need to prove to rebut the presumption of revocation
The court in Hillel Lodge stated that if an individual is trying to uphold a lost Will, the onus is on that person to:
- prove that the Will was executed;
- provide details that can trace possession of the Will to the date of the testator’s death;
- provide proof of the contents of the Will; and,
- rebut the presumption that the Will was destroyed by the testator with the intention to revoke it.
Why is it important to seek professional legal advice when planning your estate?
In Hillel Lodge, there was evidence that the Will was signed before two independent witnesses. There was also proof of the contents of the Will, as Ms. Stoller’s lawyer had kept a copy. A “trued up” copy of the Will was also found in Ms. Stoller’s apartment. The court in Hillel Lodge was therefore only concerned with the fourth point, italicized above.
This highlights the benefits of seeking professional legal advice when drafting a Will —even though the original Will was not found, its verifiable existence removed the first three hurdles for the Lodge. The Lodge, therefore, only had to rebut the presumption that Ms. Stoller intended to destroy her Will.
The dead cannot tell their story or respond to the living’s version of events
Courts prefer not to interfere with the wishes of the deceased. The Canada Evidence Act requires that material facts alleged by someone contesting the status quo (in this case, that a lost Will is revoked) be corroborated by another source. That evidence must not be from the opposite party, and it must enhance the probability of the truth.
Factors considered by a court
The court considered the following circumstances in upholding Ms. Stoller’s Will:
- How reasonable were the terms of the Will?
- What was the relationship of the testator to the beneficiary?
- Were the testator’s personal items destroyed prior to the search for the Will?
- What was the nature and character of the testator in taking care of his or her personal items?
- Did the testator dispose of property in a way that supports or contradicts the terms of the lost Will?
- Did the testator make statements that confirm or contradict the terms of the lost Will?
- Was the testator of the character to store valuable papers? If so, did the testator have a safe place to store them?
- Did the testator understand the consequences of passing away without a Will?
- Did the testator make statements to the effect that she had a Will?
The court was satisfied that Ms. Stoller did not intend to make any last-minute changes to her Will. Ms. Stoller was a meticulous person, who took notes when she changed her 2004 Will. No notes were found that corroborated her niece and nephew’s claim that she intended to revoke the 2010 Will. In addition, Ms. Stoller donated $85,000 to the Lodge during the last five years of her life, which was consistent with the terms of her Will.
The most persuasive evidence provided by the Lodge were Ms. Stoller’s statements about the Lodge. Specifically, Ms. Stoller had told a friend in 2015 that her entire estate would be left to the Lodge. In 2016, when the friend questioned Ms. Stoller’s ability to secure a spot at the Lodge because there was a long waiting list, Ms. Stoller replied that she did not anticipate having to wait, as she was leaving her entire estate to the Lodge. Ms. Stoller also told her lawyer, and her accountant of 20 years, that she intended to leave her estate to the Hillel Foundation.
If you die without a Will, it means you have no say in who will be responsible for administering and distributing your property. Because of the general presumption that a Will is revoked once it is lost or destroyed, the safest bet is to have a Will drafted by a lawyer, and to keep the original in a safe place, such as a safe deposit box or a lawyer’s office. Any changes to the Will should be documented, and the revisions should be included in an updated Will.
This article was prepared by members of the Estates Law Group at the Ottawa law firm of Nelligan O’Brien Payne LLP (nelliganlaw.ca). The authors are grateful for the assistance of Adam Soliman, articling student, for his assistance in preparing this article.
NOTE TO READERS: THE VIEWS OF THE AUTHOR DO NOT NECESSARILY REFLECT THOSE OF COYLE PUBLISHING. THIS ARTICLE IS PROVIDED AS A GENERAL SOURCE OF INFORMATION ONLY AND SHOULD NOT BE CONSIDERED TO BE PERSONAL INVESTMENT OR LEGAL ADVICE, OR A SOLICITATION TO BUY SERVICES. READERS SHOULD CONSULT WITH THEIR FINANCIAL OR LEGAL ADVISOR TO ENSURE IT IS SUITABLE FOR THEIR CIRCUMSTANCES.