What Happens to a Lost or Damaged Will?
Be it inadequate file saving or perhaps the intent to revoke a will, for some families, the reality that the will of a loved one has been lost or damaged can be troubling. But, how does the court handle lost or damaged wills, and what happens if you have a claim against the estate? Klein Lawyers explains.
When a Will Is Damaged
Under the Wills, Estates and Succession Act, a will is revoked – meaning no longer valid, or part of the will is no longer valid – when:
- Another will made by the will-maker is found
- There is a written declaration of the will-maker that revokes all or part of a will
- Under the direction of the will-maker, or a person in the presence of the will-maker and by the will-maker’s direction, there is a burning, tearing, or destroying of all or part of the will in some manner with the intention of revoking all or part of it
- The court determines that the act of the will-maker or a person involved in the making of the will was done with the intent of the will-maker to revoke the will in whole or in part
However, under the WESA, “a will is not revoked in whole or in part by presuming an intention to revoke it because of a change in circumstances.”
While this is intentional damage to a will to make it invalid in whole or in part, what happens if the will becomes lost?
When a Will Is Lost
In the 1930 case of Lefebvre v. Major,  S.C.R. 252, a family member had passed away in their home, leaving the remaining family members to need to take extra precautions in the removal of personal belongings.
In burning any belongings that could spread infection, the will was likely burned accidentally, too. However, before his death, the will-maker had created the document before a lawyer and in front of a witness. Though it was originally stored at a bank, the will was eventually sent back to the deceased where it was later destroyed with other belongings.
In reviewing the factors of the case and extenuating circumstances, the Supreme Court of Canada decided that the estate could still be passed to the will-maker’s sister since the relationship between the testator and sister did not change prior to death and there was a valid reason the will went missing.
The greater significance of this case is the three-step test to prove that a missing will should be deemed valid. The criteria include the following:
- The deceased had executed the will willfully and in a competent mental state.
- The contents of the will presented in court were the original contents of said will.
- There is proof the deceased party did not intentionally revoke the contents of the will.
Of course, when there are complications within the estate because of a missing or damaged will, it can cause long-term complications. But knowing your legal options is critical.
Contact Our Wills Variation Lawyers Today
Contact Klein Lawyers at (604) 874-7171 today for a free, confidential case evaluation. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.