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The Presumption of Destruction & Capacity to Revoke: Goold Estate  

2016 ABQB 303 (CanLII), http://canlii.ca/t/grvgg

2017 ABCA 295 (CanLII), http://canlii.ca/t/h5wcj

In the recent Alberta case of Goold Estate v Ashton,[1] the Court examined the presumption of destruction (animo revocandi) when a Will goes missing and its intersection with the necessary requisite decisional capacity to revoke a Will.

The Facts

A testator had executed a Will in 2004 with the assistance of a lawyer. About two years later, in 2006, she handwrote a subsequent Will (the Holograph Will) revoking the previous Will and changing her executors and beneficiaries. There was no issue about the formal validity of the Holograph Will (i.e. it was signed and dated, legislatively compliant etc..), nor was there any issue regarding testamentary capacity at the time she made the Will.

After her death in 2014, the original Holograph Will could not be located; however, a photocopy was produced.

The Application

The testator’s daughter argued that the administration of the deceased’s estate should proceed by intestacy, relying on the long standing presumption that if a Will, last known to be in the custody of the testator, is not found at the testator’s death, the testator destroyed it with the intention of revoking it (animo revocandi). As such, it was submitted that the Holograph Will should be deemed destroyed and revoked.

This presumption can be rebutted by evidence showing that on a balance of probabilities, the testator did not destroy the Will, or intend to revoke it.

In this case, there was no evidence presented to suggest that the testator had, in fact, destroyed the Will nor had that she had ever expressed any intention to do so. When her apartment was searched, a lockbox of documents was found in the bathroom. The box had grown mold and the documents within it had all but disintegrated. The testator’s daughter admitted on cross-examination that the original Holograph Will may have been in that lockbox, yet too damaged to be recognized.

Capacity to Revoke?

The executors appointed under the Holograph Will submitted that the presumption of destruction did not apply in this case since there was an issue as to whether or not the testator had the requisite decisional capacity to revoke her Holograph Will.

In the years before her death, the testator suffered from diabetes and Alzheimer’s disease. There was evidence (although limited) of the testator’s diminishing capacity. Some evidence suggested that she began showing signs of confusion in 2010 and others testified that she was showing signs as early as 2004, although she had sufficient capacity to continue managing her affairs.

In 2012 her doctor signed a “Declaration of Incapacity”. A further declaration was signed in 2013. She died in October of 2014.

Evidence was lacking concerning two pertinent facts: 1) at which point did the testator lose the requisite decisional capacity to revoke the Holograph Will (if she did at all)?; and, 2) when was the Holograph Will destroyed (if it was)? Without this information, it would be impossible to know whether the testator had the requisite decisional capacity to revoke the Will since capacity is both decision and time specific.

The daughter argued that “the onus of establishing testamentary incapacity is on the party advancing the allegation and that it is only when lack of testamentary capacity is proven that the onus shifts to the party alleging revocation.”

Justice Yungwirth disagreed, stating: “in my view, it is reasonable to require the party relying on a presumption that presupposes capacity, to demonstrate such capacity.”

Ultimately, the Court admitted the photocopy of the Holograph Will for probate. Justice Yungwirth acknowledged the presumption of revocation but noted that the burden of establishing that the Holograph Will was destroyed while the testator was “of sound mind” was on the daughter relying on the presumption and that she did not discharge this burden.

Alternatively, Justice Yungwirth found that, on the evidence, the presumption of destruction had been rebutted by the respondents.

The Appeal – 2017 ABCA 295 (CanLII), http://canlii.ca/t/h5wcj

The testator’s daughter appealed, arguing that the court at first instance erred in placing the burden of proving capacity on those who rely on the presumption.

The Court of Appeal upheld the Judge’s decision finding no error in law. A party who relies on the presumption of destruction should be called upon to prove the facts that trigger the presumption including: the possession and control of the original Will by the testator, a continuing capacity to revoke the Will and the absence of the Will after death. The Court of Appeal went on to find that the burden of proof would not have changed the outcome, in any event, given the Judge’s finding that the presumption was rebutted.


Much is written about whether testators/testatrix have the requisite decisional capacity to execute a Will, however it is just as important to inquire whether the testator has the requisite decisional capacity to revoke a Will (which involves the same standards or factors to be considered to determine as testamentary capacity) should a Will go missing, or if attempts are made to revoke a Will though destruction. Further, this case is a good reminder to make certain original Wills are in a safe and secure place; otherwise unintended intestacies or expensive litigation may follow.

[1] 2016 ABQB 303, aff’d 2017 ABCA 295.

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