1. Introduction
Although it does not happen all that often, it is possible to overcome the presumption of destruction of a will when it cannot be found after the testator’s death, and it is then also possible to prove the terms of the lost will. The locus classicus of such a case is Sugden v Lord St Leonards.[1] Lord St Leonard’s will could not be found after his death, but his daughter, Miss Sugden, had read it many times, and although some minor details had slipped her mind, she was able to repeat most of its provisions from memory. On the question whether the presumption is rebutted in a particular case, Cockburn CJ stated, the question is ‘whether it is or is not probable that the will should have been destroyed by the testator’.[2] He concluded on the balance of probabilities that it was unlikely that the testator destroyed the will. Moreover, it was satisfied with the accuracy of the testator’s intentions, the honesty of his daughter and her ability to recall the substance of the will. Accordingly, it admitted her memorandum of the contents of the will to probate.
These issues arose also in the recent case, Meade and the Estate of Donald Patrick Meade v Cornish.[3] Although the facts of it are rather bizarre, it is worthwhile considering it. This is so also because other issues were raised in it, including the doctrine of dependant relative revocation.
2. Facts
Donald and Sally Meade began to live together in the mid-1980s and lived in Sally’s home that she acquired before her relationship with Donald. Tracy Cornish, Sally’s only child lived with them from the beginning. Donald had no children. Tracy considered Donald to be her stepfather. Donald and Sally were married in 2003 and in 2006 Sally transferred the title to the house to herself and Donald as joint tenants. In 2011 Tracy moved to Alberta where she had found a job. Thereafter she did not often return to visit Sally and Donald. But they made mutual wills in 2017 in which they named each other as sole beneficiary, with Tracy as executor and substitute beneficiary if there was no surviving spouse. Soon after they made the wills, they discovered that they both had cancer. Tracy returned home to visit them for two weeks and came back in October when Sally was admitted to hospital. She died in December 2017. While Tracy was home, Donald showed her his 2017 Will. She read it and then he locked it away in the safe in his bedroom. Thus, Tracy knew that Sally’s property passed to Donald when she died and that she, Tracy, would inherit all Sally’s former property, including the house, and Donald’s property when he died. The house was the principal asset.
Since Tracy lived primarily in Alberta, much of what happened came from the evidence from two caregivers of Sally and Donald, who were nieces of Sally and cousins of Tracy. One of them testified that Donald’s brother Bryan was often in the house, watched what she was doing and took videos of her with his cell phone. He regularly asked if anything had been displaced and questioned Donald why it was necessary that the niece was there so often. He treated Tracy the same way when she visited her mother and Donald and asked Donald why he let Tracy into the house. After Sally went into the hospital during her final illness, Bryan appeared to isolate Donald from his wife and family and after she died, he wondered why it was necessary for Tracy still to be there. In October 2018 the other niece became a caregiver for Donald and testified to her difficult interactions with Bryan. Both testified that Bryan routinely went through Donald’s personal and financial papers and placed video cameras in the house, the footage of which he monitored on his computer.
In August 2019, Tracy returned to New Brunswick to care for Donald. Bryan objected to her being there and she involved the RCMP on more than one occasion because of Bryan’s anger and his persistent yelling. The yelling began when he learnt that Tracy would inherit the house. One day in 2019 Donald was leaving the house with Bryan. Tracy asked him where he was going. Donald said that they had to pay an insurance bill. Instead, they went to the same lawyer who drafted Sally and Donald’s 2017 wills, to make a new will for Donald. While they were gone, Tracy photographed her mother’s safe and its contents. Someone had written on it, ‘to be given to Bryan Meade’ and ‘this is the only money you get’. The safe contained only bird seed, a container, and Canadian Tire money. Bryan called the RCMP when he found the safe missing. During the ensuing conversation, Tracy learnt that Donald had made a new will that afternoon in which he made Bryan his executor and devised the house to another brother of Donald and Bryan, with Bryan as a substitute beneficiary. Tracy also learnt that Bryan had removed all her mother’s family as friends from her Facebook account but continued to use it for himself. She took a screenshot of a post Bryan made on Sally’s account, which stated ‘the trap was set and sprung the plot thickens’, suggesting that Tracy had been caught in a trap.
The lawyer testified that he prepared the mutual wills and what they contained and spoke about the 2019 will. In his testimony he said that he had no concerns about Donald’s capacity and did not believe that he was under anyone’s influence. He further testified that he always gave the original wills to his clients, and he advised them to destroy any former wills. He did not possess the original of either the 2017 or the 2019 Wills and at trial, in response to a question from Tracy’s lawyer, he stated that he did not have a copy of the 2017 Will with him.
Tracy lodged a caveat in the Probate Court, contesting the validity of the 2019 Will on the ground of undue influence. At the same time, she filed a Notice of Application for an order declaring the 2019 Will invalid and Donald’s 2017 Will valid. Bryan responded by denying undue influence.
At the trial the Probate Judge noted during closing arguments that if he were to declare the 2019 Will invalid, there would be an intestacy unless the 2017 Will was proved, and while there was viva voce evidence from Tracy and the lawyer about its existence and contents, there was no original or copy. After a break, Tracy’s lawyer presented the court with an unsigned draft copy of the 2017 Will that the Meade’s lawyer sent her moments before in PDF format. The trial judge admitted this document over the objections of Bryan’s lawyer. He also admitted the photographs Tracy had made of the safe and its contents, as well as the screenshot of the post made by Bryan on Sally’s Facebook page.
The Probate Judge held that the 2019 will was invalid and admitted the 2017 Will as valid. Bryan appealed on the following grounds:
(1) The trial judge erred in admitting the photographs and the screen shot of the Facebook page because they related to events after the 2019 Will was executed and were irrelevant on the issue of undue influence.
(2) He also erred by holding the 2017 Will valid and that Donald did not die intestate, by admitting into evidence an unsigned draft of the destroyed 2017 Will after the parties had closed their case, and by ignoring the fact that the draft did not comply with the statutory formalities of executing a will.
Surprisingly, Bryan informed the court before the appeal that he would not be attending the hearing and he did not. Nor did anyone appear for him. Tracy appeared for herself.
3. Analysis and Judgment
On the appeal, the court held that there was no merit in Bryan’s grounds of appeal. It had been suggested to the trial judge that he could rely on the statutory validating provision[4] to order that the draft of the destroyed will was valid as if it had been executed in compliance with the Act. However, he instead accepted the destroyed Will as having been proved in solemn form and declared it to be Donald’s last Will. The court agreed that this was the appropriate analysis and disposition based on the evidence.
The Court of Appeal held that the photographs were admissible, as well as the ‘trap’ post on the Facebook page because they went to the heart of the relationship between the testator and Bryan, who was alleged to have exercised undue influence over him, and also to Bryan’s attitude toward Tracy. However, the court then referred to and considered Geffen v Goodman,[5] which concerned inter vivos undue influence in which case equity raises a presumption of undue influence against the person who received a gift and occupied a position of influence over the donor. Such a presumption cannot be raised in the case of a testamentary gift.[6] Nonetheless, the court held, rightly, that evidence discovered after a will is executed or relates to a time after the will is made is not necessarily irrelevant if it speaks to the relationship between the testator and the person who allegedly exercised undue influence over him.
The court then considered the objection to the admission of the unsigned draft. The trial judge considered that Tracy was unable to obtain the 2017 Will or a copy of it before the trial. He also considered whether it was necessary to recall the lawyer for further testimony either on cross or direct examination, but he did not consider it necessary in the circumstances. Thus, the court held that the trial judge did not commit a reversible error to permit Tracy to reopen her case for the purpose of admitting the unsigned draft copy of the 2017 Will.
The court also rejected Bryan’s argument that the draft should not have been admitted as the testator’s 2017 Will because it did not comply with the statutory formalities. The trial judge did not simply declare the draft to be considered valid. Rather he held that the 2017 Will had been proved even though it was shown to have been destroyed and therefore he declared the ‘Last Will and Testament of Patrick Donald Meade and dated November 20, 2017’, to be the ‘valid Last Will and Testament of the deceased’. In the opinion of the Court of Appeal, this order could be considered as an order that the draft be considered a valid representation of the testator’s last will of 20 November 2017.
The court then discussed the law that permits proving a lost or destroyed will in solemn form.[7] It found that, based on the uncontested evidence of the lawyer and Tracy, the evidence accepted by the trial judge was sufficient to prove the 2017 Will in solemn form. In reaching that conclusion the trial judge drew an inference that the 2017 Will was destroyed but found that Donald did not have the intention to destroy it. He took the view that the declaration in the 2019 Will that revoked all prior wills was invalid because he had concluded that that will was invalid for undue influence. And he also concluded that the circumstances surrounding the destruction rebutted the presumption that it evidenced an intention to revoke the will. The Court of Appeal took the view that the trial judge’s reasons were consistent with the application of the doctrine of dependent relative revocation.[8] That doctrine is raised for example when a testator’s intention to revoke is conditional on a new will is valid. Since the new will was not valid, the revocation was ineffective.
The court opined that the trial judge’s findings on the evidence amply supported his decision that the Will was proved in solemn form even without the admission of the draft will. However, that draft clearly supported the evidence of Tracy and the lawyer.
—
[1] (1876), 1 PD 154.
[2] Ibid., at p. 218.
[3] 2023 NBCA 10.
[4] Wills Act, RSNB 1973, c W-9, s 35.1.
[5] [1991] 2 SCR 353.
[6] See Seguin v Pearson, 2018 ONCA 355.
[7] For a discussion of this law, see Oosterhoff on Wills, 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), §11.3.
[8] On this point see further ibid., §10.6.4.
Written by: Albert Oosterhoff
Posted on: November 30, 2023
Categories: Commentary, WEL Newsletter
1. Introduction
Although it does not happen all that often, it is possible to overcome the presumption of destruction of a will when it cannot be found after the testator’s death, and it is then also possible to prove the terms of the lost will. The locus classicus of such a case is Sugden v Lord St Leonards.[1] Lord St Leonard’s will could not be found after his death, but his daughter, Miss Sugden, had read it many times, and although some minor details had slipped her mind, she was able to repeat most of its provisions from memory. On the question whether the presumption is rebutted in a particular case, Cockburn CJ stated, the question is ‘whether it is or is not probable that the will should have been destroyed by the testator’.[2] He concluded on the balance of probabilities that it was unlikely that the testator destroyed the will. Moreover, it was satisfied with the accuracy of the testator’s intentions, the honesty of his daughter and her ability to recall the substance of the will. Accordingly, it admitted her memorandum of the contents of the will to probate.
These issues arose also in the recent case, Meade and the Estate of Donald Patrick Meade v Cornish.[3] Although the facts of it are rather bizarre, it is worthwhile considering it. This is so also because other issues were raised in it, including the doctrine of dependant relative revocation.
2. Facts
Donald and Sally Meade began to live together in the mid-1980s and lived in Sally’s home that she acquired before her relationship with Donald. Tracy Cornish, Sally’s only child lived with them from the beginning. Donald had no children. Tracy considered Donald to be her stepfather. Donald and Sally were married in 2003 and in 2006 Sally transferred the title to the house to herself and Donald as joint tenants. In 2011 Tracy moved to Alberta where she had found a job. Thereafter she did not often return to visit Sally and Donald. But they made mutual wills in 2017 in which they named each other as sole beneficiary, with Tracy as executor and substitute beneficiary if there was no surviving spouse. Soon after they made the wills, they discovered that they both had cancer. Tracy returned home to visit them for two weeks and came back in October when Sally was admitted to hospital. She died in December 2017. While Tracy was home, Donald showed her his 2017 Will. She read it and then he locked it away in the safe in his bedroom. Thus, Tracy knew that Sally’s property passed to Donald when she died and that she, Tracy, would inherit all Sally’s former property, including the house, and Donald’s property when he died. The house was the principal asset.
Since Tracy lived primarily in Alberta, much of what happened came from the evidence from two caregivers of Sally and Donald, who were nieces of Sally and cousins of Tracy. One of them testified that Donald’s brother Bryan was often in the house, watched what she was doing and took videos of her with his cell phone. He regularly asked if anything had been displaced and questioned Donald why it was necessary that the niece was there so often. He treated Tracy the same way when she visited her mother and Donald and asked Donald why he let Tracy into the house. After Sally went into the hospital during her final illness, Bryan appeared to isolate Donald from his wife and family and after she died, he wondered why it was necessary for Tracy still to be there. In October 2018 the other niece became a caregiver for Donald and testified to her difficult interactions with Bryan. Both testified that Bryan routinely went through Donald’s personal and financial papers and placed video cameras in the house, the footage of which he monitored on his computer.
In August 2019, Tracy returned to New Brunswick to care for Donald. Bryan objected to her being there and she involved the RCMP on more than one occasion because of Bryan’s anger and his persistent yelling. The yelling began when he learnt that Tracy would inherit the house. One day in 2019 Donald was leaving the house with Bryan. Tracy asked him where he was going. Donald said that they had to pay an insurance bill. Instead, they went to the same lawyer who drafted Sally and Donald’s 2017 wills, to make a new will for Donald. While they were gone, Tracy photographed her mother’s safe and its contents. Someone had written on it, ‘to be given to Bryan Meade’ and ‘this is the only money you get’. The safe contained only bird seed, a container, and Canadian Tire money. Bryan called the RCMP when he found the safe missing. During the ensuing conversation, Tracy learnt that Donald had made a new will that afternoon in which he made Bryan his executor and devised the house to another brother of Donald and Bryan, with Bryan as a substitute beneficiary. Tracy also learnt that Bryan had removed all her mother’s family as friends from her Facebook account but continued to use it for himself. She took a screenshot of a post Bryan made on Sally’s account, which stated ‘the trap was set and sprung the plot thickens’, suggesting that Tracy had been caught in a trap.
The lawyer testified that he prepared the mutual wills and what they contained and spoke about the 2019 will. In his testimony he said that he had no concerns about Donald’s capacity and did not believe that he was under anyone’s influence. He further testified that he always gave the original wills to his clients, and he advised them to destroy any former wills. He did not possess the original of either the 2017 or the 2019 Wills and at trial, in response to a question from Tracy’s lawyer, he stated that he did not have a copy of the 2017 Will with him.
Tracy lodged a caveat in the Probate Court, contesting the validity of the 2019 Will on the ground of undue influence. At the same time, she filed a Notice of Application for an order declaring the 2019 Will invalid and Donald’s 2017 Will valid. Bryan responded by denying undue influence.
At the trial the Probate Judge noted during closing arguments that if he were to declare the 2019 Will invalid, there would be an intestacy unless the 2017 Will was proved, and while there was viva voce evidence from Tracy and the lawyer about its existence and contents, there was no original or copy. After a break, Tracy’s lawyer presented the court with an unsigned draft copy of the 2017 Will that the Meade’s lawyer sent her moments before in PDF format. The trial judge admitted this document over the objections of Bryan’s lawyer. He also admitted the photographs Tracy had made of the safe and its contents, as well as the screenshot of the post made by Bryan on Sally’s Facebook page.
The Probate Judge held that the 2019 will was invalid and admitted the 2017 Will as valid. Bryan appealed on the following grounds:
(1) The trial judge erred in admitting the photographs and the screen shot of the Facebook page because they related to events after the 2019 Will was executed and were irrelevant on the issue of undue influence.
(2) He also erred by holding the 2017 Will valid and that Donald did not die intestate, by admitting into evidence an unsigned draft of the destroyed 2017 Will after the parties had closed their case, and by ignoring the fact that the draft did not comply with the statutory formalities of executing a will.
Surprisingly, Bryan informed the court before the appeal that he would not be attending the hearing and he did not. Nor did anyone appear for him. Tracy appeared for herself.
3. Analysis and Judgment
On the appeal, the court held that there was no merit in Bryan’s grounds of appeal. It had been suggested to the trial judge that he could rely on the statutory validating provision[4] to order that the draft of the destroyed will was valid as if it had been executed in compliance with the Act. However, he instead accepted the destroyed Will as having been proved in solemn form and declared it to be Donald’s last Will. The court agreed that this was the appropriate analysis and disposition based on the evidence.
The Court of Appeal held that the photographs were admissible, as well as the ‘trap’ post on the Facebook page because they went to the heart of the relationship between the testator and Bryan, who was alleged to have exercised undue influence over him, and also to Bryan’s attitude toward Tracy. However, the court then referred to and considered Geffen v Goodman,[5] which concerned inter vivos undue influence in which case equity raises a presumption of undue influence against the person who received a gift and occupied a position of influence over the donor. Such a presumption cannot be raised in the case of a testamentary gift.[6] Nonetheless, the court held, rightly, that evidence discovered after a will is executed or relates to a time after the will is made is not necessarily irrelevant if it speaks to the relationship between the testator and the person who allegedly exercised undue influence over him.
The court then considered the objection to the admission of the unsigned draft. The trial judge considered that Tracy was unable to obtain the 2017 Will or a copy of it before the trial. He also considered whether it was necessary to recall the lawyer for further testimony either on cross or direct examination, but he did not consider it necessary in the circumstances. Thus, the court held that the trial judge did not commit a reversible error to permit Tracy to reopen her case for the purpose of admitting the unsigned draft copy of the 2017 Will.
The court also rejected Bryan’s argument that the draft should not have been admitted as the testator’s 2017 Will because it did not comply with the statutory formalities. The trial judge did not simply declare the draft to be considered valid. Rather he held that the 2017 Will had been proved even though it was shown to have been destroyed and therefore he declared the ‘Last Will and Testament of Patrick Donald Meade and dated November 20, 2017’, to be the ‘valid Last Will and Testament of the deceased’. In the opinion of the Court of Appeal, this order could be considered as an order that the draft be considered a valid representation of the testator’s last will of 20 November 2017.
The court then discussed the law that permits proving a lost or destroyed will in solemn form.[7] It found that, based on the uncontested evidence of the lawyer and Tracy, the evidence accepted by the trial judge was sufficient to prove the 2017 Will in solemn form. In reaching that conclusion the trial judge drew an inference that the 2017 Will was destroyed but found that Donald did not have the intention to destroy it. He took the view that the declaration in the 2019 Will that revoked all prior wills was invalid because he had concluded that that will was invalid for undue influence. And he also concluded that the circumstances surrounding the destruction rebutted the presumption that it evidenced an intention to revoke the will. The Court of Appeal took the view that the trial judge’s reasons were consistent with the application of the doctrine of dependent relative revocation.[8] That doctrine is raised for example when a testator’s intention to revoke is conditional on a new will is valid. Since the new will was not valid, the revocation was ineffective.
The court opined that the trial judge’s findings on the evidence amply supported his decision that the Will was proved in solemn form even without the admission of the draft will. However, that draft clearly supported the evidence of Tracy and the lawyer.
—
[1] (1876), 1 PD 154.
[2] Ibid., at p. 218.
[3] 2023 NBCA 10.
[4] Wills Act, RSNB 1973, c W-9, s 35.1.
[5] [1991] 2 SCR 353.
[6] See Seguin v Pearson, 2018 ONCA 355.
[7] For a discussion of this law, see Oosterhoff on Wills, 9th ed by Albert H Oosterhoff, C David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters, 2021), §11.3.
[8] On this point see further ibid., §10.6.4.
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