What do you do when, along with your belongings and home, your careful financial and estate plan for your family and loved ones is also lost?

In Alberta, it is easy to spot examples of where this can happen. Whether it is the Fort McMurray fire, a one-in a-hundred year flood, or a case of misplaced, lost, or stolen property, replacing or retrieving important property and documents can be an onerous task. If this occurs together with loss of life, the consequences can compound the already-difficult situation for surviving family members.

What happens when you lose your Will? (in a fire, flood, or otherwise)

The Alberta Courts have recently considered two cases of lost Wills. In both cases, the Court found that the contents of the Will were proven with sufficient clarity to admit those documents to probate (so that the plan is not lost).

Two Case Studies

A. Cordell v. Shiels Estate

In Cordell v. Shiels Estate, the issue was whether it was possible to prove a promise made by the deceased (Shiels) to allow her long-time friend (Nipshank to live in Shiels’ house after Shiels’ death, for the duration of Nipshank’s life (a life estate). It was contained in a hand-written codicil made by Shiels after she signed her Will, which was subsequently lost. Was this promise binding on Shiels estate, where its other beneficiaries under the main Will contested this claim?

Shiels’ hand-written codicil to her Will could not be located after her death. Nipshank claimed that it contained the promise, but could not produce a copy of the codicil for the Court. The main Will gave the entire estate, including the house, to her nieces, the Cordells.

Nipshank had some good evidence of what was contained in the codicil, partly based on a review of Shiels’ former (but revoked) Wills and partly based on her evidence as to what the codicil said.

In the former Wills, prepared by an estate lawyer, Shiels gave significant gifts (including the entire residue) to Nipshank, and also addressed constructing (with Estate funds) a “mother-in-law suite” for Nipshank with a life estate (rent-free) for Nipshank in the house. Although one version of the former Will did not contain any provision for that life estate to Nipshank, the residue was given to her.

The estate lawyer also testified. He said the reason why the life estate was removed in the current Will was that Shiels was (at that time) expecting a large inheritance; the extra value would go to Nipshank in the residue, so she required less. Around this time, Ellen Cordell was given mortgage financing by Shiels, and permitted to build a home on the property.

Nipshank testified that she was given express promises by Shiels that she could continue to live in the house after Shiels’ death. She also testified that Shiels showed her a hand-written codicil in 2008 (after the current Will was drawn up), giving her a life estate. Another friend of Shiels, Ms. Fraser, testified that, in 2008, Shiels asked her how to prepare a holograph Will, and subsequently showed Ms. Fraser a document she purported to be a hand-written Will (which Ms. Fraser confirms promised Nipshank could live in the house rent-free for life), and asked Ms. Fraser if she could store it in her hope chest (and put that document in the chest, in front of Ms. Fraser).

Nipshank confirmed that Shiels also showed this codicil to her niece, Ellen Cordell, which was confirmed by Ellen Cordell, after Shiels’ death when the Will was read by that part was missing, and that she herself had seen the paper in Shiels’ car (and which several neutral parties at that meeting confirmed Ellen said in the presence of all).

Some of the group also searched Shiels’ residence for the papers, looking in likely places (a hope chest) where Shiels kept important documents. The hope chest was gone from its usual place, and her residence had evidently been searched already when that witness arrived. Ellen Cordell later told Nipshank that Ellen had received the hope chest from Ellen’s mother, but that it didn’t contain a codicil.

Ellen’s mother admitted taking the chest, to look for ‘other’ mementos, but that it didn’t contain a codicil. The Court found that Shiels’ personal documents were accessible to the Cordells after Shiels’ death, and that the Cordells removed them.

Subsequently, Ellen Cordell’s evidence changed. She alleged that she remembered that the document she saw gave no interest in the lands to Nipshank.

Meanwhile, after Shiels’ death, the Cordells acted, in some ways, as though Nipshank had a right to be in the house (including renovating it, but taking care to note that the renovations were being done with Nipshank’s requirements in mind), although without acknowledging her life estate in the alleged codicil.

Ms. Shiels’ brother testified that Ms. Shiels discussed with him her desire that Ms. Nipshank live rent free in her house as long as she wished after her death, many times before Ms. Shiels’ death including a few months prior to her death. His evidence was that Ms. Shiels never did tell him about a codicil or documentation of this wish, though. And yet, he was named executor of her Will but also did not know that fact until Ms. Shiels’ death (he renounced that position due to health reasons, and Nipshank received a Grant of Administration, claiming status as an Adult Interdependent Partner of Shiels in that application, although absent any reference to a codicil or the life estate).

After Shiels died, the Cordells did not pay the mortgage that was placed by Shiels for their benefit before her death. The bank foreclosed, and Ms. Nipshank was ultimately ordered out of the house, pending the decision on her claim to a life estate. Ms. Nipshank did not mention the codicil to the Cordells until shortly after the foreclosure issue arose.

What is the test the Court applies to determine whether to probate a lost Will (or codicil, as a form of Will)?

In Shiels, the Court decided that a lost Will (or codicil) can be proven and probated where these conditions are addressed:

• Firstly, there is initially a presumption that where there was a Will before death, and that it was last in the Testator’s (Deceased’s) possession but is missing at death, it was destroyed or revoked intentionally and no Will exists (but this does not apply where the Court is convinced it continued to exist after death — the burden is on the one trying to say it continues to exist, and it is a “heavy burden”).
• Then, to prove a lost will, the applicant must satisfy these requirements:
  1. Due execution of the Will (the Testator signed it, and knowingly approved its contents).
  2. Chain of possession of the Will to the date of death (and afterwards if lost after death).
  3. Rebut the presumption that the Testator destroyed it before death, with intent to revoke it.
  4. Prove the contents (intentions for property) contained in the lost Will. Parol evidence (witness testimony outside the 4 corners of the document) is admissible to prove the Will’s contents, if reliable and clear (and it must be corroborated for witnesses with a stake in the outcome). The entire material contents of the Will must be shown (not just part), because all parts must be given legal effect.

Based on the evidence outlined, the Court found, in relation to the requirements, that:

1. Due Execution: the hand-written document did exist, and was a valid Codicil. The Testator intended its contents, it was in her handwriting, and she signed it.
2. Chain of Possession: Possession remained with the Testator, either in her hope chest (which the Court found was removed from the Testator’s home after her death by either Ellen or Carolyn Cordell).
3. Rebuttal of Presumption of Intentional Destruction (pre-death): The Codicil’s terms were reasonable, and accorded with the known, consistent, pre-death intentions of Ms. Shiels in relation to Nipshank. There was no evidence that Shiels ever destroyed the Codicil.
4. Proof of the Codicil’s Contents: The Court gave significant weight to Shiels’ comments after she made the Codicil (which are admissible in such matters). And, based on the corroborated testimony by the witnesses and the circumstances of Shiels and Nipshank long relationship and Nipshank’s residence with Shiels, the Court found that the Codicil granted Nipshank a life estate of the suite in the house, on the same terms as before Shiels’ death (some cost-sharing involved).

Another issue considered by the Courts was: whether a prior Grant precludes proving a subsequently-alleged codicil or Will (can the Court set aside a prior Grant or otherwise give effect to the ‘found’ or proven lost document, after a Grant has issued on the first document(s))?

In Shiels, the Cordells argued that, because Nipshank did not reveal the codicil in her first Application for a Grant, she was precluded from doing so later under the ‘lost Will’ document argument. Court dismissed that argument, and found that Nipshank could receive an ‘amended’ Grant if a lost document is proved later where no intentional omission occurred.

Under Surrogate Rule 75, a Personal Representative can apply for a new Grant, or to set aside a prior Grant, whether or not a Grant has already issued, particularly where it issued under an application for proof in common (as opposed to solemn) form (i.e. where it was a ‘desk application’ without formal proof or challenge). Of course, the Court may consider the Personal Representative’s credibility in such cases, especially in relation to earlier non-disclosure. What must be proven is an “honest case for revocation” of the prior Grant due to new information.

The Court discusses the legal distinction between formal proof and the desk application process and concludes that if a Will is proven in solemn form, it is formally proven and not subject to later challenge (except if obtained by fraud, which is rarely alleged or proven). A Grant obtained by desk application, on the other hand, can be set aside much more readily, and proof in solemn form directed.

Although Ms. Nipshank knew of the existence of the codicil, and believed its contents were part of Shiels’ wishes, she did not disclose it in her application for the original Grant. The Court found that she was truthful, on a strictly technical interpretation of the forms submitted, in the original Grant even though she did not disclose the codicil in the forms. So, while it cannot be said she was overly transparent, neither did she deliberately evade her obligation to disclose.

The Court was also cognizant of its duty under s. 11 of the Evidence Act, to ensure that only corroborated evidence on behalf of Nipshank, as an adverse party to the Estate, would be useful in her application.

B. Re Goold Estate

In Re Goold Estate, the Alberta Court of Queen’s Bench applied the analysis from Shiels Estate, when a holograph Will was not found in original ink. Only a photocopy was available to the Court. The Court’s primary concern was with the presumption of intentional destruction/revocation by the Testator that arises when the original is not found in the Testator’s possession at death.

While many facts were reviewed, the Court looked to these key findings, to satisfy the Shiels Estate test for probating a lost Will:

• The Ms. Goold made a formal Will in 2004, but later revoked it and replaced it with a holograph Will in 2006 (when no capacity issue exited).
• In mid-2012, Goold was declared mentally incapable by her medical and social work caregivers in 2012, and 2013.
• Goold was always meticulous with records. She kept them in a locked box in her room. However, after death the documents were mould-damaged and fell apart when the box was opened and rendered illegible.
• Goold’s daughter, a lawyer, discussed Wills with her mother often, but was not sure that she discussed the holograph Will at issue. Her daughter testified that she had never seen the original holograph Will, but assumed her mother had it and that her mother never told her she had destroyed it.
• The photocopy of the holograph Will was otherwise technically valid (it was in Goold’s handwriting and signed by her).
• There was no evidence that Goold destroyed the Will or instructed anyone to do so for her.
• While there was no issue with Goold’s mental capacity in 2006 when she made the Will, the facts raised a question of whether Goold had sufficient capacity at her death, to revoke it intentionally (the Court confirmed that a personal without capacity cannot revoke their Will).
• There was no evidence of either precisely when Goold lost mental capacity nor exactly when her Will was destroyed (it just was not found in original at her death), so it is not possible to conclude it was done at a date when she lacked testamentary capacity.

This case raised a twist to the Shiels Estate test. Where the person trying to prove the lost Will says that Testator lacked capacity at the date of death, the onus shifts to the person opposing the Will to show that the Testator had sufficient testamentary mental capacity to revoke it, and that it was revoked or destroyed before the Testator lost that mental capacity.

The Court found that the parties opposing probate of the photocopy of the holograph Will had not proven that Goold destroyed her holograph Will before her death, and that she did so when she had sufficient mental capacity to do so.

The Court found sufficient evidence (summarized above) to probate the photocopy of the 2006 holograph Will.

Recommendations

These two cases highlight the importance of at least a few key considerations (among others):

• Maintain more than one safe storage place.
• Advise more than one neutral person (preferably) of the contents of the Will, if feasible and advisable in your Estate plan.
• Have a professional advise you on your estate plan, and request storage services, if your legal firm provides a Wills vault service. Maintain a copy in their vault, and retain several copies that note where the original is being stored.
• If you encounter difficulties proving a lost Will after the Testator’s death, take accurate accounts of the timeline and statements of those with information about the Testator’s plans and estate history, including their legal counsel and accounting advisors.
• Contact Estate counsel for advice, as soon as possible after death, to prepare a strategy to prepare a proper application to the Court that has the best chance of success in the circumstances.