Missing Will: Did 96-Year Old Millionairess Intend to Revoke It?

At the age of 96, a woman named Sarah Stoller (“Sarah”) passed away, leaving an estate worth nearly $7 million. Under her Will she made in 2010, she left all her money to a Charitable Home for seniors. Although her lawyer later gave evidence that he had helped Sarah make a Will, she had taken it home with her to store in her safety deposit box and he no longer had the original. Unfortunately, it could not be found, although a copy of it was located after Sarah’s death in a binder in her home office.
Under Canadian law, and absent the original, there is a legal presumption that Sarah intentionally destroyed her Will with the intent of revoking it entirely. This presumption could be overcome or rebutted with proper evidence to the court’s satisfaction.
Evidence of rebuttal was precisely what the court was asked to consider. Sarah’s next-of-kin, her niece and nephew, contended that there was insufficient evidence on the balance of probabilities to rebut the presumption that Sarah destroyed the Will. Instead, the presumption should stand and the Will should be considered revoked; this would result in Sarah being deemed to have died intestate (in which case the niece and nephew would stand to benefit).
After examining the facts, the court found enough evidence in place to rebut the presumption on the balance of probabilities that Sarah intentionally revoked her Will, and that she died intestate as a result.
For a revocation to be effective, the law requires that the Will was either destroyed by “burning, tearing, or otherwise destroying it” or else that it was destroyed in Sarah’s presence, at her direction, and with her actual intent to revoke it. For the niece and nephew to succeed, they had to show that either: 1) the Will was not actually destroyed; or 2) Sarah did not have the requisite intent. Their evidence had to be corroborated by other material evidence.
The court considered numerous factors, including Sarah’s existing relationship to the intended beneficiary (the Charitable Home), her nature in taking care of her personal effects, whether she was of the type to store valuable papers, and whether she had a place to store them. It also considered whether Sarah understood the consequences of not having a Will, and whether she had made statements to others indicating that she had one.
The facts all favoured a ruling that Sarah had not destroyed her Will deliberately. In the five-year period leading up to her death, Sarah had made sizeable donations to the Charitable Home, and made it known that she intended to leave her entire estate to that facility. She was also a highly-organized, meticulous person, as reflected by the way in which she stored documents. Since she understood the importance of having a Will, it was unlikely that she had simply misplaced it.
On all the evidence, the court found there was sufficient proof to establish, on the balance of probabilities, that Sarah did not intend to revoke her Will. Its existence had been proven, and the copy in her office binder was admitted as evidence for probate, with the entire $7 million estate being distributed to the Charitable Home as she intended. See Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253 (CanLII).