May 11, 2020

Charity Gets $7 Million, in Spite of a Lost Will

Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253 (CanLII)

Estate law is one area where our legal system imposes strict formality. A valid will must meet the requirements set out in the Succession Law Reform Act. Generally, the person making the will must be seen to do so in the presence of two witnesses who also sign their names. To be valid, a will must be in writing. While most types of oral contracts are enforceable in court, a last will and testament that was merely stated orally is never binding.

Nevertheless, oral evidence about the deceased person’s wishes can be important when the original of the will has been lost.

Unfortunately, lost wills are not uncommon. There are quite a few reports of court decisions dealing with the subject. There is a long and colourful history of jurisprudence about lost wills, going back to the English Court of Chancery. I have written a longer article about this topic, “The Common Law Treatment of Lost Wills” in the Estates, Trusts and Pensions Journal.

It appears that many people who go to a lawyer to have a will made take it home with them, perhaps with the intention of putting it into a safety deposit box. They forget to do so, and it becomes misplaced.

In such situations, a photocopy of the will may have been kept by the lawyer, but only the original signed will is legally valid.

It is an interesting question as to what happens in the situation with wills prepared remotely in counterparty under emergency measures during the Covid-19 pandemic. One might suppose that the copy bearing the testator’s signature will be the one that it is most important to safeguard.

There is an ancient legal principle that governs the situation of lost wills, that Canada has taken over from England. It creates considerable difficulty. If the will was in the possession of the deceased, and it is not found after he or she dies, the law presumes that the deceased person deliberately destroyed the will with the intention of revoking it.

That means the person died intestate, and the assets are distributed among the next of kin according to the formula laid out in the Succession Law Reform Act. This may have dire consequences, particularly where the deceased was cohabiting with a common law spouse. Under the statute, a spouse who was not legally married to the deceased has no right to inherit where there is no will.

However, the presumption that the will was deliberately destroyed may be rebutted by evidence. In considering whether the deceased actually did deliberately destroy the will, the courts will explore a wide range of evidence, including oral evidence from people who spoke with the deceased about his or her intentions.

The Facts of the Case in Levitz v Hillel

A dramatic example of this played out in Ottawa, and was reported as Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253.

Sarah Stoller passed away in 2016 at the age of 96. She left an estate valued at nearly $7,000,000. She had made a will in 2010, under which a seniors’ home named the Hillel Lodge Long Term Care Centre was the beneficiary. Her lawyer had a photocopy of the will, but the original could not be found.

Sarah had taken the original will with her, saying that she intended to put it in her safety deposit box. It was not there after she passed away, even though she was generally known to be a meticulous person who took good care of her records.

Sarah had a niece and nephew who were her next of kin. Under the law of intestacy, in the absence of a will, they would have inherited the entire estate. Hillel Lodge bore the burden of presenting evidence to show that the will had been inadvertently lost, to rebut the legal presumption that Sarah had intended to revoke it.

Principles for Proving a Lost Will

The judge laid out a set of principles for deciding the issue:

(i) Whether the terms of the Will are reasonable;

(ii) Ms. Stoller’s relationship with the beneficiary;

(iii) Whether Ms. Stoller’s personal effects were destroyed prior to the search for the Will being carried out;

(iv) Ms. Stoller’s nature and character in taking care of her personal effects;

(v) Whether there were any dispositions of property during Ms. Stoller’s lifetime which confirm or contradict the terms of the copy of the Will sought to be probated;

(vi) Statements made by Ms. Stoller which confirm or contradict the terms of distribution set out in the Will;

(vii) Whether Ms. Stoller was of the character to store valuable papers, and whether Ms. Stoller had a safe place to store the papers;

(viii) Whether there is evidence that Ms. Stoller understood the consequences of not having a will and the effects of an intestacy; and

(ix) Whether Ms. Stoller made statements to the effect that she had a will.

Arguing in favour of the presumption that the will had not been carelessly lost was evidence of Sarah’s character, which touches on points (iv) and (vii). The judge accepted the point that “Ms. Stoller was, by all accounts, a highly organized and meticulous person. This was reflected in the way she took care of her personal effects and in the way she organized and stored her important documents.” That would support the argument that she would not have carelessly lost the will – the alternative being that she had deliberately destroyed it.

Nevertheless, even a normally careful person can sometimes be forgetful and make mistakes, particularly at the age of 96.

Civil decisions are decided on the balance of probabilities, and the judge found more evidence in favour of the view that Sarah would not have wanted to destroy her will. A friend had spoken to her only a few weeks before her death, and Sarah stated that she was leaving everything to Hillel Lodge. In the years prior to her death, Sarah had made substantial donations to Hillel Lodge.

The judge’s decision provided no information about what kind of relationship Sarah had with her niece and nephew. One might think that this would have been relevant to factor (i) above, the reasonableness of the will. If evidence was provided about this, it was not mentioned in the decision. This is usually an important factor in the adjudication of lost will disputes. In other decisions about lost wills, where different relatives of the same degree are in competition as beneficiaries, this has often been a point that was weighed in the balance. As stated by the Supreme Court of Canada in the leading case of Lefebvre v. Major, [1930] S.C.R. 252, when a will is lost, revocation is a presumption “more or less strong according to circumstances such as the character of the testator and his relation to the beneficiaries.”

Reliance on Oral Evidence

In the Stoller case, the judge placed the greatest weight on the oral evidence of the witnesses who had spoken with the deceased. This shows how important oral and circumstantial evidence become when the written will is lost:

The statements made by Ms. Stoller in the weeks prior to her death in May 2016 confirm that Ms. Stoller did not intend to die without a will in place. To the contrary, Ms. Stoller’s statements confirm that she wanted to leave her entire estate to Hillel Foundation; this would not occur if the estate were distributed pursuant to an intestacy.

In contrast to the decision in the Stoller case, historically there have been cases of lost wills where the court ruled differently. In some of them, the court did rule that there was insufficient evidence that the will had not been revoked. In those cases, the beneficiaries that had been named in the will lost out. In Sarah Stoller’s case, there was substantial evidence from credible witnesses about her testamentary intentions. In many other situations, that would not be available.

Everybody who has significant assets should make a will to ensure that their assets are distributed according to their wishes. A will makes the process of administering the estate simpler and less stressful for the survivors. Having made a will, it is equally important to make sure that you take good care of it. The temptation to take it home and put it in a safe place is not prudent. It is best to store it with a law firm, or alternatively the Ontario Superior Court provides an office where wills can be deposited for safe keeping, for a modest fee.

As with any legal problem, a lost will does not create an insurmountable barrier, but dealing with it involves cost and aggravation. It is much better to take steps to avoid the problem in the first place.

Peter Spiro is Principal of Spiro Law P.C. and counsel for estate litigation with The legal information in this article is of a general nature, and should not be considered legal advice to the reader.