• Grandpa, a widower, died last week and his oldest daughter Susan, with whom he lived when he died, has come up with a 2000 will.

But for the life of me, I thought Grandpa told me in 2003 that he was changing that will, which gave everything to Susan. He even spoke of a meeting with a solicitor for that purpose.

Grandpa was very disappointed by Susan's conviction for commercial and banking fraud and wanted to adjust his 2000 will. Susan says she's looked everywhere but can't find any later will.

I'm wondering if ....

Aren't we all.

The lost will is an element of far too many will cases [see, also, the Legal Definition of Lost Will].

The simplicity of it is stunning. When a person dies, the first person to reach him or her has access to all his papers, before, during or after medical care readies and takes away the body. The destruction of a later original will or codicil can have the very real effect, if combined with dishonesty and perjury, all for the sake of money, of reviving a previous will, or leaving the estate to be distributed in accordance with the applicable intestate statute, either more favourable to the first person on the scene of death or falling upon the deceased's belongings.

These scenarios can be somewhat reduced by registration of will details but even that process, which often does not require any duplicate copy be filed with the registration agency, is no foolproof system. Jurisdictions that permit holograph wills face a more daunting problem given the lack of formalities or even witnessing of these types of testamentary instruments.

Copies held by lawyer offices can be an effective tool against this type of fraud but lawyers don't keep copies forever and lawyers retire and die too, often causing the loss of their files.

For centuries the law has agonized over this problem having no access to the deceased testator, whose evidence would be conclusive, but not wanting to guess as to what may have happened.

Here is what the common law has set up as a system to deal with lost wills.

Where there is clear evidence of a subsequent will but that apparently cannot be found, despite the fullest inquiries, there is a presumption (don't worry, it's rebuttable) that the testator revoked it by intentionally destroying it. After all, the testator is responsible for safekeeping of a document and if it can't be found, it makes sense to presume that he destroyed it.

In many cases, the presumption can be displaced.

Retired law professor Jim MacKenzie wrote:

"The presumption can be rebutted by circumstances that 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."

Statutes now exists which set out how a will can be revoked. For example the 2007 version of Ontario's Succession Law Reform Act provides, at ¶15:

"A will or part of a will is revoked only by,
  • marriage, subject to section 16;
  • another will made in accordance with the provisions of this Part;
  • a writing, declaring an intention to revoke, and made in accordance with the provisions of this Part governing making of a will; or
  • burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it."

In Re (Anthony) Wagenhoffer Estate, Saskatchewan Justice Dielschneider had to wrestle with a 1969 will being pushed by the deceased's son Steve, the stated executor and only beneficiary, against an alleged subsequent lost will raised by the deceased's son Henry, said will holograph to boot, and apparently made in 1981 (the testator died in 1982).

Henry's evidence was that Pop had written out a hand-written will at Henry's house in October of 1981, and with two other persons being present (besides Henry). Steve told the Court that it never happened.

At trial, the evidence began to pour out that Anthony wanted to change his 1969 will. He interviewed a prospective executor other than Steve. He told Henry, upon one of his visits to Henry's house in Saskatoon, that he wanted to make out a new will. A friend of his father was summoned to witness. According to all three witness, Anthony signed the holograph will as did the witnesses, therein providing that his estate would be shared between his sons Steve and Henry.

"Having written the will, Anthony Wagenhoffer folded the paper, placed it into the pocket of his coat and took it with him when he left his son's home the next morning. This document, if it ever was made, cannot now be found."

Steve was the first on the scene when his father died and his evidence was that he made a thorough search but could not find any such document, other than the 1969 will, of course.

The judge was impressed with the witnesses ability to reconstruct the 1981 will, practically word for word and elected to reconstruct it based on the oral testimony, adding, in reference to Steve, "I entertain serious suspicions about (the) non-production (of the 1981 will)".

For an example of such an application which was not successful, see Trotman v Thompson (2006) in which the Ontario judge noted a requirement of and a lack of "independent evidence" or "independent corroboration". The judge was influenced by the Ontario requirement, as set out at s. 13 of the provincial Evidence Act, that (emphasis added):

"In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence."

MacKenzie, in Wills and Estates adds:

"When the presumption is rebutted, probate may be granted if there is sufficient proof of both the contents of the lost will and its due execution. The contents of the lost will may be established on secondary evidence such as a copy, a draft, solicitor's notes or any other written evidence. If the evidence is sufficiently clear, oral testimony may be accepted to allow probate."

Theobald on Wills states that:

"An unrevoked will may be lost or destroyed during the testator's lifetime or after his death. An applicant who seeks to prove such a will needs to establish that the will was duly executed (and) ... what the contents of the will were."

References and Further Reading: