After a person passes away, their family members will begin to look for the Deceased’s Last Will and Testament, in order to determine what the Deceased’s final wishes for their estate are.
So, what happens if you can’t find a will?
In Ontario, there is a presumption that if an original will cannot be located, then it must be presumed that the will has been destroyed. The Supreme Court of Canada, in the case of Lefebvre v. Major, 1930 CanLII 4 (SCC), [1930] SCR 25 held that where a will is traced to the possession of the testator, and cannot be found at the time of death, there is a presumption that the Will was destroyed by the testator with the intention of revoking the Will. This is known in legal circles as the presumption of destruction.
Our judicial system will try to uphold the testator’s intention if the presumption of destruction is rebutted and it is proved that the Will has simply been lost.
In the case of Sorkos v. Cowderoy, 2006 CanLII 31722 (ON CA) the Ontario Court of Appeal outlined the test for proving a lost will. The court held that to rebut the presumption, a party must establish that the lost will was:
1. Executed;
2. The extent the Applicant went to trace possession of the Will to the date of death, and afterwards if the Will was lost after death;
3. The responding party could reply with particulars that the Will was destroyed by the testator with the intention of revoking it; and
4. proving the contents of the lost Will.
If you cannot rebut the presumption that the will was destroyed, then the estate will be administered pursuant to the prior will. If there is no prior will, then the estate will be distributed in accordance with an intestacy.
Thanks for reading!
-Alicia Ambrus