1. Introduction

It is not uncommon that people are unable to find the will of a relative who has died even though it is known that she did make one. When that happens the presumption of destruction is raised. It is a rebuttable presumption and the onus rests on the person relying on the will to prove that the testator did not destroy the will but that it is more likely that it was lost, stolen, or inadvertently destroyed. The issue arose in Re Finsant Estate.^[1] The reasons of JG Morley J are sound and examine the principles in detail.

2. Facts

The deceased, Rosemary Finsant, died in hospital from pneumonia in October 2021. She lived alone in her home on Quadra Island for many years, having divorced her husband in the 1980s. She had no children or surviving siblings. Her closest living relatives are her niece, Rhonda Schicchi, and her children; a nephew, Fred Biggs, who has no children; and the children of a predeceased nephew, namely, the Applicant, Megan Beggs, and her siblings, Minique and Sebastian Beggs. Ms. Finsant’s contact with her extended family was limited. While Ms. Finsant had physical limitations, the evidence showed that she did not suffer any significant cognitive decline up to her death.

The hospital informed Ms Schicchi of her aunt’s illness and death. Ms Schicchi and her husband searched the house soon after. They found a filing cabinet upstairs that contained a number of significant documents but no will. There was also a table upstairs on which there were other documents but also no will. In November 2022 Ms Schicchi made a search for a registered will, which disclosed that Ms. Finsant had registered a will executed in December 2001. It also disclosed that a notary public, Ms. Lakberg, had drafted the will. Ms Schicchi then returned to the house with her husband, her son and his girlfriend, and Minique Beggs and her partner. They conducted another thorough search, during which they found other papers, some hidden in books which they searched as well. But no one found a will.

Ms. Lakberg gave Ms Schicchi an unsigned copy of the 2001 will and informed her that she gave the original to Ms. Finsant after it was executed. The copy disclosed that it named the Applicant the sole beneficiary of the residue of the estate. Ms. Finsant had also named the Applicant the beneficiary of her Registered Retirement Income Fund.

Megan Beggs (‘Ms Beggs’) brought this Application for an order pronouncing in favour of the will. Ms Schicchi is the Respondent and brought an order confirming that Ms. Finsant died intestate. Ms Schicchi is the administrator of the estate.

3. Analysis and Judgment

Justice Morley noted that everyone agreed that Ms. Finsant had the requisite testamentary capacity and that the statutory formalities for the execution of the will were probably observed. Everyone also agreed that since Ms. Finsant was the last one in possession of the will and that it could not be found after she died, the presumption of destruction arises. Justice Morley noted further this is a rebuttable presumption that applies unless there is good reason to find that the will was more likely lost, stolen, or inadvertently destroyed. The onus rested on the Applicant, who relied on a non-original copy of the will, to prove on a balance of probabilities that Ms. Finsant did not intentionally destroy the will but that it was inadvertently lost or displaced.^[2] Older cases suggest that the burden is a heavy one, requiring clear and convincing evidence but Justice Morley pointed out that the modern Canadian rule recognizes only one standard of proof in civil cases, namely, proof on the balance of probabilities.^[3]

Justice Morley added that the presumption takes into account the commonsense assumption that people expect a person who has executed a will to keep it in a place where it can be found after she dies. And thus, unless there is contrary reason, that is the more inherent probability.

Justice Morley quoted^[4] the following factors that a court will consider in determining whether the presumption of destruction has been rebutted:

• whether the terms of the will itself were reasonable;
• whether the testator continued to have good relationships with the beneficiaries in the copy of the will up to the date of death;
• where personal effects of the deceased were destroyed prior to the search for the will being carried out;
• the nature and character of the deceased in taking care of personal effects;
• whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated;
• statements made by the testator which confirm or contradict the terms of distribution set out in the will;
• whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers;
• whether there is evidence that the testator understood the consequences of not having a will, and the effects of intestacy;
• whether the testator made statements to the effect that he had a will;

Justice Morley considered each of these factors in turn, found that there was very little evidence one way or the other, and therefore concluded that Ms Beggs has not rebutted the presumption of destruction. Consequently, Ms. Finsant’s estate would be distributed on the basis that she died intestate.

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[1] 2024 BCSC 217.

[2] Thierman Estate v Thurman, 2013 BCSC 503, para 43.

[3] Citing FH v McDougall, 2008 SCC 56, para 40, and Canada (Attorney General) v Fairmont Hotels Inc, 2016 SCC 56, para 36.

[4] From Haider v Kalugin, 2008 BCSC 930, para 13.