I’ve recently written about how a diagnosis of moderate to severe dementia impacts a court’s assessment of testamentary capacity in the context of preparing a will. But, how does dementia factor into an alleged revocation of a valid will?

In Jugovits Estate (Re), 2026 BCSC 269, the B.C. Supreme Court was asked not only to determine whether a will had been revoked shortly before death, but also whether the deceased, who was hospitalized with Alzheimer’s disease, had the legal capacity to do so.

Background

Laszlo Jugovits executed a will in May 2021; in his will, he left $275,000 in cash gifts to four stepdaughters, and the residue of his estate to his son, Laszlo Jr. The primary asset was his home, valued at approximately $1.3 million.

In September 2023, Mr. Jugovits was admitted to hospital and was suffering with symptoms of Alzheimer’s disease; he was unable to stand, and had minimal hand strength – described as “claw hands.” On October 26, 2023, a treating physician wrote that he lacked capacity to direct his care, make health care decisions or manage his finances due to major neurocognitive disorder. He died in hospital on November 22, 2023.

Laszlo Jr. gave evidence that in late October 2023 his father asked him to retrieve documents from home, including what he later believed to be his original will. He observed a phone call between his father and his lawyer (which he recorded in part), after which the deceased tore the will almost in two, and stated in English, “I want to change my will.” The deceased asked Laszlo Jr., to place the torn will in his hospital bedside table; he was later unable to find it. Another witness gave evidence that she observed the deceased rip up papers and say he wished to change his will.

Other evidence placed the intact original will in Laszlo Jr.’s possession after his father’s death. A stepsister and her daughter testified that on January 14, 2024, Laszlo Jr. attended their home with documents and indicated he had located the original will. Both testified that they observed a document labeled “Last Will and Testament” that did not have any “Copy” marking. The stepsister gave evidence that Laszlo Jr. asked her not to tell anyone what she saw. The conversation with Laszlo Jr. was partially recorded.

The certified copy of the will was circulated two days later, and the executor sought probate. If revocation were established, the estate would pass on intestacy — entirely to Laszlo Jr.

Law on Revocation and Testamentary Capacity

Under Section 55(1)(c) of WESA, a will is revoked where a will-maker burns, tears or destroys all or part of their will (or directs someone to do so in their presence), and does so with the intention of revoking all or part of it.

At common law, where an original will cannot be located, and was last known to be in the deceased’s possession, a presumption arises that it was destroyed with intent to revoke. I have previously written about the presumption of revocation and its practical implications (here). Where it applies, the burden of proof shifts to the person denying revocation to show, on a balance of probabilities, that the original was merely lost or misplaced.

However, the presumption does not operate where there is evidence that the will-maker became mentally incapable after the will was executed. In those circumstances, the party alleging revocation must prove on a balance of probabilities that the will was revoked and that the testator had testamentary capacity.

Whether a deceased had testamentary capacity to revoke a will is a legal, not medical, determination. A dementia diagnosis is not determinative; a person declared medically incapable may still meet the legal test. But dementia that rises to the level that doctors declare a testator incapable will attract careful judicial scrutiny (see my prior discussion on this and the legal test for testamentary capacity here). In the revocation context, the Court must be satisfied that the deceased meets the testamentary capacity criteria and had a reasonable understanding of the implications for their estate and beneficiaries when they revoked their will. No lesser standard applies because a revocation is a ‘simpler’ act.

Application to the Case

The Court concluded that the presumption of revocation did not assist Laszlo Jr., because ample evidence cast doubt on the deceased’s capacity at the time of the alleged revocation; he held the burden of proving revocation and capacity. The Court observed that it is inherently suspicious in the revocation context when the person who stands to benefit from a revocation is the same person who witnesses or participates in it.

On the evidence, the Court was not satisfied that the will had been destroyed. Laszlo Jr. was an interested witness, standing to gain if revocation were found. Recorded interactions and the testimony of the stepsister and her daughter were persuasive and Laszlo Jr.’s explanation that he misunderstood what documents he had were not accepted. The Court was also not persuaded that the deceased, with his physical limitations, had the ability to tear the will in half.

In the alternative, even if the Court were wrong about revocation, it concluded that the deceased lacked testamentary capacity in late October 2023. The medical evidence from the treating doctor, Laszlo Jr’s recordings of conversations with the deceased, including one with his lawyer, raised questions about capacity and whether he was being unduly influenced. The Court found the evidence did not demonstrate that the deceased had a considered appreciation of the consequences of revoking the gifts to his stepdaughters.

The Court admitted the certified copy of the will to probate.

Key Takeaways

• The presumption of revocation does not always apply where the original Will is missing. Where testamentary capacity is in doubt, the party alleging revocation must prove both revocation and capacity.
• Revocation does not attract a lower legal threshold for finding testamentary capacity.
• Allegations of “deathbed revocation” in the context of advanced dementia should be closely examined, particularly where a beneficiary stands to gain and is involved in the act.