In Re Beals Estate, 2026 NSSC 73 (“Re Beals”), the Supreme Court of Nova Scotia addressed what the presumption of revocation is, and what evidence can rebut it when a Last Will and Testament that has been duly executed goes missing.

Background

Laura Beals (“Laura” or the “Deceased”), passed away on July 6, 2023. She was survived by her seven children, including Rolenda Beals (the “Respondent”) and Leanne Saunders (“Leanne” or “Applicant”) as well as various grandchildren, including Lindsay Beals (“Lindsay” or the “Applicant”).^[1]

At Laura’s death, she owned a property located at 177 Lower Partridge River Road, East Preston, Nova Scotia (the “Patridge Property”). She also owned a joint bank account with her daughter, Crystal Simmonds, (“Crystal”) containing about $27,000.^[2]

On April 26, 2018, Laura executed a Last Will and Testament (the “2018 Will”) with the assistance of a will program provided by Dalhousie Law. At the time of execution, Lauren Grant (“Lauren”) and Andrew Nicol (“Andrew”) were attesting witnesses. The 2018 Will named Lindsay, as estate trustee and left him mainly the Patridge Property and the residue of her estate (the “Estate”). It also intentionally omitted gifts to her children, noting they were able to provide for themselves and were aware of her intentions.^[3]

In November of 2021, Leanne took photographs of the 2018 Will after observing that it was stored in a bedside dresser drawer next to Laura’s bed.

Laura suffered a stroke in September 2021 and a second stroke in February 2023. Following the second stroke, Laura was hospitalized until late June 2023 and returned to the Patridge Property nonverbal, bedridden, and requiring constant care. Multiple witnesses, including Leanne, reported seeing the envelope containing the 2018 Will in Laura’s bedside dresser, on multiple occasions, shortly before Laura’s return from the hospital. After Laura’s death, her family members were unable to locate the 2018 Will.^[4]

Lindsay applied to prove the 2018 Will in solemn form using Laura’s photographs of the 2018 Will against the matching copy from the lawyers’ records, or alternatively as a s. 8 “writing” under the Wills Act. Rolenda opposed, invoking the presumption of revocation (the “Presumption”) on the basis that the original 2018 Will could not be found, and applied for the appointment of estate trustee if the Presumption was upheld.^[5]

The Presumption of Revocation

At common law, the Presumption arises where:

1. The Will was last traced to the testator’s possession; and
2. The original cannot be found after death, following reasonable inquiries.^[6]

If the Presumption applies, the onus shifts to the proponent to rebut it on a balance of probabilities with strong, cogent evidence. The strength of the Presumption is context‑specific and depends on factors such as the security of the will’s storage and access by others.^[7]

The Court asserted that the Presumption arises when a Will last in the testator’s possession cannot be found after death and inquiries were made regarding its location. Strong evidence can rebut the Presumption on a balance of probabilities using secondary evidence such as copies or solicitor records for probate.^[8]

Analysis

On the facts, the Court found that the Presumption was triggered. The 2018 Will was kept in Laura’s possession in the bedside dresser of her bedroom and could not be found after her death. Moreover, searching the Patridge Property amounted to the “fullest” practicable inquiries in the circumstances.^[9]

The Court determined that the Presumption was weak due to the circumstances surrounding the storage of the 2018 Will. It was kept in a vulnerable location, an unlocked bedside drawer in Laura’s bedroom which multiple family members could access. Laura had previously voiced concerns about her family members interfering with her belongings in her bedroom. Additionally, it was generally known among the family that Laura executed a Will and that it was stored in her bedroom.

The Court emphasized that the Presumption may be rebutted on a balance of probabilities by strong circumstantial evidence, including consistent testamentary declarations, the reasonableness of the Will’s dispositions, and the testator’s relationships with the beneficiaries. Lastly, evidence undermining the possibility that the testator would destroy the Will was also admissible evidence to rebut the Presumption.^[10]

Applying those factors, the Court credited extensive corroborated testimony that Laura repeatedly stated the Patridge Property would go to Lindsay. Moreover, paragraph 4 of the 2018 Will explained her intentional omission of gifts to her adult children and determined nothing material had changed between the execution of the Will in 2018 and her death in 2023 to suggest a contrary intention.^[11]

Laura’s physical limitations after her June 2023 discharge made personal destruction or removal of the 2023 Will impossible, further weakening the finding of revocation. With credibility findings adverse to the Respondent and secondary evidence tying the photographed executed pages of the 2018 will to the copy found in Laura’s lawyer’s file, the Court held the Presumption was rebutted. On this basis, the 2018 Will was admitted to probate in solemn form.^[12]

Concluding Remarks

Re Beals demonstrates that the presumption of revocation is not an automatic defeat for a missing Will. If the original Will was accessible to third parties, the testator’s intentions are clearly documented, and there is evidence of the testator’s physical incapacity to revoke, it may be challenging for the applicant to prove the testator intended to destroy the will. Additionally, secondary evidence, such as photographs and a matching solicitor’s copy may be sufficient to prove the will in solemn form.

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[1] Ibid at para 1

[2] Ibid at para 2

[3] Ibid at para 14

[4] Ibid at para 28

[5] Ibid at para 29

[6] Ibid at para 9

[7] Ibid at para 94

[8] Ibid at para 94

[9] Ibid at para 95

[10] Ibid at para 111

[11] Ibid at para 115

[12] Ibid at para 117