Duhaime's Law Dictionary


Lost Will Definition:

A will that has been lost and which may, under certain circumstances, be reconstructed for probate.

Related Terms: Will

Also referred to as the lost will doctrine.

See, also, The Lost Will.

When a will, once known to exist and not known to have been revoked, is lost and cannot be found by the heirs of a decedent, the will is presumed in law to have been revoked. But the presumption of revocation may be set aside.

"The presumption may be rebutted either by the circumstances tending to support a contrary conclusion than destruction by the will-maker or by declarations made by the will-maker indicating that the lost will was regarded as valid and subsisting."1

How far will this go? In Brincombe, Justice Flinn of the Nova Scotia Court of Appeal held:

"When the presumption is rebutted, probate may be granted of the contents of the lost will after proof of due execution, on such secondary evidence as a copy or a draft or solicitor's notes or any other written evidence, and indeed, if it is significantly clear, even oral testimony may be probated.....

"While the authorities referred to the fact that strong evidence is required to rebut this presumption, it is clear that the burden is no stronger than that of the balance of probabilities."

REFERENCES:

  • Brincombe v Brincombe, 2000 NSCA 67
  • Matter of Breckwoldt, 11 NYS 2d 486 (1939)
  • NOTE 1: MacKenzie, James, Feeney's Canadian Law of Wills, 4th Ed. (Toronto: LexisNexis, 2011), page 5-20.1, §5.65

 

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