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Presumption of Revocation of a Will

1. Introduction

There is a well-recognized common law presumption of revocation of a will that arises in certain circumstances. It was described as follows by AF Wilson J in Haider v Kalugin:[1]

If a Will last known to be in custody of testator is not found at his death, the presumption is that the testator destroyed it with the intention of revoking it (“animo revocandi”). However, that presumption may be rebutted by evidence, written or oral, of the facts. The strength of the presumption will depend on the character of the custody which the testator had over the Will.[2]

Moreover, statutory provisions regarding revocation also address the matter. Thus, for example, section 55(1) of the Wills, Estates and Succession Act[3] provides in part:

A will … is revoked only in one or more of the following circumstances:

. . .

(c) by the will-maker, or a person in the presence of the will-maker and by the will-maker’s direction, burning, tearing, or destroying all or part of the will in some manner with the intention of revoking all or part of it.

The issue of the presumption of revocation of a will arose in the recent case, Re Galloway Estate,[4] in rather unusual circumstances, which I shall summarize below.

2. Facts

The father, Jack Galloway, was predeceased by his wife, Patricia. They had two children, Joan, and James. They purchased a townhouse in 2003, and James moved into the property to live with them in 2010. In 2011 Patricia, who had developed dementia, moved into an extended care facility. In November 2014 Jack made a new Will. In it he named James as the primary executor and Joan as substitute. He split his estate equally between the two children. Under his prior Will Joan her children would have received 80% of his net estate.

In 1994 the parents had given powers of attorney to Joan. She used the powers to transfer title from Patricia to Jack and then from Jack over to her son, Christopher, an Arizona lawyer. In March 2015 Jack and Patricia began proceedings to undo Joan’s actions. James was also a party to the proceedings Patricia died in July 2015. In the litigation Joan made several very serious allegations against James. The court found them to be scurrilous and found most to be without substance. In August 2015 the court ordered the title to the property to be retransferred to Jack. Jack and James both applied for special costs and the court granted their applications. Jack had made a new Will in 2015, in which he left his entire estate, including the house and his entitlement to the special costs, to James. Jack died in March 2019.

During the litigation, Ms. Darnell, counsel to Jack, Patricia, and James, told James that if he died without a will, all his estate would go to Joan. Ms Darnell’s firm prepared a Will for him, which he executed. The witnesses were a lawyer and a legal assistant at the firm. The firm gave James the signed Will to keep in his possession in a safe place at his house. At about the same time, James told Sharon Strelaeff that she was his sole executor and sole beneficiary. Patricia was Sharon’s godmother and Sharon had known the Galloway family her entire life. James was friends with another owner in the condominium, Ms. Kreitz. He gave her a key to his property and permission to enter it if necessary. In October 2021 Ms Kreitz became concerned because she had not seen James for some time. So, she entered his property, discovered his body in bed, and called the police. It was determined that James had died around 1 September 2021, some six weeks before Ms. Kreitz discovered the body. The police contacted Joan as James’ next of kin. They told her that because of the decomposition of the body, she would have to engage a specialty cleaning service to make the property safe to enter. She engaged SAH Disaster Restoration Services (‘SAH’) The employees of SAH worked on the property for a considerable period of time. Among other things, they filled and disposed of 20 double-bagged garbage bags.

After SAH finished its work, Joan entered the property to look for significant documents and removed a number of documents but did not find a will. Sharon also attested that a diligent search was done of all reasonable places and that no will was found.

Sharon presented the copy of the Will she obtained from Ms. Darnell’s law firm to the court and sought probate of it. Joan objected to the petition and relied on the presumption of revocation.

3. Analysis and Judgment

Madam Justice Tucker noted that section 55(1)(c) of WESA has two elements: (1) the will must have been destroyed; and (2) the testator must have intended the destruction to revoke the will. She also noted that the presumption is based on a ‘logical inference that a person of ordinary prudence would keep safe an original document as important as a will, and that failure to find such an important document after a person’s death is presumptive evidence that it was intentionally destroyed by the prudent person’.

Joan argued that the burden on Sharon as executor to rebut the presumption of revocation is very heavy. But Justice Tucker disagreed. She quoted from the judgment of the Supreme Court of Canada in FH v McDougal,[5] which states that there is only one civil standard of proof at common law and that is proof on the balance of probabilities.

Justice Tucker then considered the evidence. Joan objected to the evidence of a number of witnesses as insufficiently reliable. But Justice Tucker held that she could reach a conclusion of the issue of revocation without having to rely on the disputed evidence. Significantly, Joan did not challenge Ms. Darnell’s evidence of her advice to James that his estate would pass to Joan if he died intestate. Joan also did not dispute Mr Magnus’ evidence about the fact and timing of James’ complaints to the Arizona Bar about Christopher. Ms. Darnell also testified that at no time did James ever mention that he had any intention of changing his Will. Justice Tucker held that that evidence was not hearsay and was, therefore, admissible. She also held that it was not necessary to allow Joan to cross-examine the Sharon, Ms. Darnell, Mr Magnus, and Ms. Kreitz on their affidavits, since the undisputed evidence was ample to persuade her that the Will was inadvertently lost. She was satisfied on the evidence that James was not fastidious or well-organized by nature. Joan testified that she was advised that it is the policy of SAH not to remove any documents from the premises that are engaged to clean. But there was no evidence of such a policy. Nor was there any evidence that SAH made an inventory of what they removed from the property or that they followed a protocol when they discovered documents among the effects that had become a biohazard. However, Justice Tucker noted that it was not necessary to find that SAH knowingly threw out recognizably important documents, since the property was in a state of disorganization.

Justice Tucker then considered the following factors:

(a) James was not neat or organized by nature;

(b) Since he did not have a home safe, James probably placed the Will somewhere on the property;

(c) SAH disposed of garbage bags of contaminated household effects before any searches for the Will were conducted;

(d) In light of previous acrimonious litigation and the animosity between James and Joan; the fact that James knew that Joan would get his estate if he died intestate; and the fact that Sharon was a rational choice of beneficiary since she was Patricia’s goddaughter; the terms of the Will were reasonable;

(e) There were no relationship issues between James and Sharon after the execution of the Will;

(f) Mr Magnus had standing instructions to pursue the special cost awards against Joan and to collect them; and

(g) there was no evidence of a reconciliation with Joan

Moreover, Justice Tucker noted that James knew that if he died intestate Joan would inherit the property he and his parents sought to reclaim in the litigation, and further that his intestacy would also relieve Joan of her obligation to pay the special litigation costs awards. In addition, it would make very little sense for James intentionally to destroy the Will because he decided to die intestate, while not instructing Mr Magnus to desist in his pursuit of the special costs.

Accordingly, Justice Tucker found that the presumption of revocation was rebutted. Then she went on to find that the Will had been properly executed and attested, and thus she granted probate of the copy of the Will in solemn form to Sharon. She also directed Joan to transfer all documents and belongings of James to Sharon’s counsel, and also to transfer all access to estate accounts to Sharon. Since the proceedings were necessitated by James’s failure to keep the Will safe, Justice Tucker held that it was appropriate to award special costs out of the estate to both parties.

[1] 2008 BCSC 930, para 9.

[2] Sugden v Lord St Leonards (1876), 1 P.D. 154 (CA).

[3] SBC 2019, c 13 (‘WESA’).

[4] 2023 BCSC 1204.

[5] 2008 SCC 53, para 40.


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