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Case Brief - Rebutting the presumption of revocation

Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253 is a case about a missing will and what it takes to rebut the presumption of revocation.

Facts

Sarah Stoller ("Ms. Stoller") passed away in May 2016 at age 96, leaving behind a $7 million state. Her next of kin were a niece ("Nancy-Lynn") and nephew ("Bryan").

Ms. Stoller had made a will with a lawyer in 2010, appointing Ingrid Levitz ("Ms. Levitz") as executor and naming the Hillel Lodge Long Term Care Foundation as the sole beneficiary. Following execution, Ms. Stoller took the original will and affidavit of execution and informed her lawyer that she would be storing them in her safety deposit box. Her lawyer kept a signed copy.

After Ms. Stoller's death, the will could not be found. It was not in her home, among her papers, or in the safety deposit box. A notice in the local law association newsletter did not result in any new information coming to light.

Issue

Should Ms. Stoller's missing will be presumed revoked?

Nancy-Lynn and Bryan argue that the will is missing and there is insufficient evidence to rebut the presumption of revocation. This would result in an intestacy.

The Law

To prove a lost will, the applicant must provide:

  1. Evidence of due execution
  2. Particulars which trace possession of the will to the testator's death
  3. Proof of the contents of the will
  4. A rebuttal of the presumption that the will was destroyed/revoked by the testator (see Sorkos v. Cowderoy (2006), 215 OAC 194 (C.A.))

Since Ms. Stoller's lawyer had a signed copy of the will, this case hinges on the fourth requirement. To rebut the presumption of revocation, the applicants must show that Ms. Stoller did not destroy or did not intend to revoke the will (see Succession Law Reform Act, s. 15(d)).

In answering this question, a court can consider factors such as whether the terms of the will are reasonable, the testator's relationship with the benefciary, and statements by the testator, among others (see Goold Estate v. Ashton, 2016 ABQB 303).

Application to the Facts

The Hillel Lodge Long Term Care Foundation was an important part of Ottawa's Jewish community, of which Ms. Stoller was a member. She was very interested in the foundation and had donated $85,000 in the last five years of her life.

There was evidence that in the weeks before her death, Ms. Stoller made statements consistent with her having not intended to revoke her will. In April 2016 she made statements to her accountant, a close friend, and Ms. Levitz about leaving her entire estate to the foundation.

Based on this evidence, the court concluded that on a balance of probabilities
on BoP, there was an absence of an intention by Ms. Stoller to revoke her will. The signed copy was admitted to probate and the foundation received the residue of the estate.

Bottom Line

It's important that your original will can be found, or you risk disputes over whether you intended to revoke it.