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In Jugovits Estate (Re), 2026 BCSC 269, the B.C. Supreme Court was asked not only to determine whether a will had been revoked shortly before death, but also whether the deceased, who was hospitalized with Alzheimer’s disease, had the legal capacity to do so.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

I’ve written previously about section 58 of the Wills, Estates and Succession Act (WESA) – this is a powerful remedial provision that allows B.C. Courts to ‘cure deficiencies’ and admit to probate a record or document that represents a deceased’s testamentary intentions, but does not meet the formal requirements of a valid will, revocation, alteration or revival of a past will under WESA.

Section 58 has been used by courts in B.C. to ‘cure’ and probate: a lawyer-prepared will that was unsigned, a handwritten will that was improperly witnessed, loose notes around a bedroom leaving certain property to specific people, and entries on a computer setting out plans to prepare a will.

In the decision of Paige v. Noel, 2026 BCCA 358, the ‘records’ at issue were an informal text message and email. The chambers judge found these messages were a ‘record’ that could be ‘cured’ under s. 58. The Court of Appeal disagreed and overturned the decision.

Paige v. Noel is a reminder from the Court of Appeal of the ‘basics’ of what is required from a document/record before a court can consider use of s. 58.

Background

Barbara Kessil died in January 2023 and left a 2014 will that divided her estate equally between her son and her goddaughter, Jennifer Paige.

In 2021, conflict arose between Ms. Paige and Ms. Kessil. In October 2022, Ms. Kessil sent a text to her executrix, Michelle Noel, stating that she had made an appointment with a notary to “redo” her will and that “Jennifer is out.” Several days later, Ms. Kessil emailed Ms. Noel, setting out that she had met the notary, that a will would take a couple weeks to prepare, and that her current will would remain in place in the meantime so that she would not be intestate (without a will) if she died in the interim. These two messages later became the subject of the s. 58 application.

Ms. Kessil later terminated the notary’s services. An appointment with a second notary was made but cancelled and never rescheduled for apparent health reasons.

In early January 2023, Ms. Kessil contacted a lawyer neighbour about making a ‘very minor change’ to her will; she died several days later without executing a new will or providing instructions.

Section 58 of WESA and the Legal Test

Section 58(2) and (3) allow a court to “cure deficiencies” and treat a non-compliant document as a valid testamentary instrument if the court determines that the record (including in electronic form), document, writing or marking on a will represents:

1. the testamentary intentions of a deceased person,
2. the intention of a deceased person to revoke, alter, or revive a will … or
3. the intention of a deceased person to revoke/alter/revive a testamentary disposition in a document other than a will.

On a s. 58 application a judge must determine on the balance of probabilities (more likely than not standard), that the non-compliant document represents the ‘fixed and final’ testamentary intentions of a deceased at the ‘material time’ (usually at the time the document was made). A judge can consider ‘extrinsic evidence’ about the state of mind of the deceased before, during and after the document was made to help make this determination.

However, in Paige, the Court of Appeal reminds us that the wording of s. 58(2) requires the deceased to have intended that the document itself would stand as their will, revocation or alteration of an existing will, noting the long-standing principle at common law that “no will is entitled to probate unless the testator executed it with the intention that it should take effect as his will.”

In Paige, the Court makes clear that not every expression made by a person, verbally or in writing, about disposal of their property on death constitutes a testamentary intention and notes that “the further a document departs from formal requirements, the harder it will be for a court to find it represents the deceased’s testamentary intention.”

Application of the Law to the Case

The Court of Appeal found the chambers judge erred in their understanding of ‘fixed and final intention’ and as a result erred in their interpretation of s. 58. Being in text andemail form did not turn a “casual conversation” between Ms. Noel and the deceased “into a legally operative testamentary record.”

On the face of the messages, the deceased expressed an intention to remove Ms. Paige through the preparation of a new will, and until a new will was prepared the 2014 will was to remain in effect. It was clear the deceased did not intend to alter her will through the text and email. Extrinsic evidence on the deceased’s state of mind did not ‘displace’ the words of those messages.

Takeaways

• While section 58 applications are fact specific the Court of Appeal reminds us that there are basic requirements that must be present before a document can be cured and probated – namely, the deceased must have intended that the
  non-compliant document or record serve as their will (or alteration or revocation of a previous will).
• The further away a document falls from meeting the technical requirements of a valid will under WESA – in this case a casual text or email – the harder it will be for a court to find that it shows testamentary intention.
• Not every expression of what a person wants done with their property when they
  die constitutes a ‘fixed and final’ testamentary intent.

The B.C. Court of Appeal decision of Kroeger v. Bush Estate, 2026 BCCA 16 has attracted recent media attention, including coverage in the Vancouver Sun. The Court in Kroeger overturned a lower court decision and held that the involvement of a beneficiary in the preparation of a new will, which dramatically altered the distribution of an earlier will to their personal benefit, constituted a “suspicious circumstance.”  I recently wrote about suspicious circumstances arising in this context, and that post can be found here.

Background

Helen Bush died in 2021, leaving an estate valued at approximately $5 million. Under a 2001 will, the bulk of her estate would be divided equally amongst 18 nieces and nephews, with each receiving around $275,000.

In November 2018, Ms. Bush executed a new will. Under the 2018 will, 14 nieces and nephews would each receive $5,000, and the respondent executor, Sandra Rodrigues (a niece of Ms. Bush), and her three siblings would each receive around $1.2 million.

Ms. Rodrigues, an accountant, held a power of attorney for Ms. Bush, and had assisted her and her late husband with their financial affairs. After the death of Mr. Bush in 2018, Ms. Rodrigues contacted a notary (who had long acted for Ms. Bush) and provided her with a copy of the 2001 will and a list of changes to be made. The notary prepared the will without speaking first to Ms. Bush and did not review with Ms. Bush the extent of her estate assets (including what she had inherited from Mr. Bush upon his death in 2018). The notary gave evidence that she was satisfied Ms. Bush knew the extent of her estate based on her experience in dealing with her over the years. Questions the notary had about executor compensation were directed to Ms. Rodrigues and not Ms. Bush.

A sister and niece of the deceased challenged the 2018 will. The chambers judge found the 2018 will to be valid.

The Legal Framework –  Assessing Suspicious Circumstances and Validity of a Will 

In Kroeger, the Court of Appeal set out the step-by-step approach that should be followed by a court in assessing whether a will has been proven in solemn form:

1. The party seeking to propound (rely upon) a will must prove on a balance of probabilities (more likely than not standard) that the will was executed in line with statutory requirements, that the will-maker had testamentary capacity, and that they knew and approved of the contents of their will;
2. A duly executed will that was read over by a will-maker who appeared to understand it benefits from a rebuttable presumption of validity;
3. The presumption of validity is rebutted where there is evidence of suspicious circumstances relating to the preparation of the will, testamentary capacity, or the free will of the testator (presence of coercion or fraud); and
4. If suspicious circumstances are established, the burden shifts back to the propounder to prove testamentary capacity, knowledge and approval, and dispel the suspicious circumstances raised.

The party asserting suspicious circumstances must raise a “specific and focused” suspicion and show “some evidence, which if accepted, would tend to negative knowledge and approval or testamentary capacity.”  Undue influence, coercion, etc. do not need to be proven to rebut the presumption of validity.

Analysis – Suspicious Circumstances Established

The Court of Appeal held that the chambers judge erred in failing to find the presence of suspicious circumstances. In particular:

• Rodrigues’ instrumental role in the preparation of the will while occupying a position of trust as power of attorney – including providing instructions to the notary without Ms. Bush’s involvement;
• The significant benefit she and her siblings received under the new will; and
• The marked departure from a longstanding testamentary plan benefitting all nieces and nephews equally.

The Court of Appeal noted that the above were well-recognized at law as hallmarks of suspicious circumstances; particularly the fiduciary beneficiary involved in the preparation of a will. The appellants did not need to prove actual nefarious conduct.

Knowledge and Approval: The Magnitude of the Estate

As suspicious circumstances were present, the burden of establishing the validity of the will fell on Ms. Rodrigues. The Court found that while testamentary capacity was not seriously at issue, the respondent failed to prove that Ms. Bush knew and approved of the contents of the 2018 will — particularly the magnitude of the residue she was leaving to Ms. Rodrigues and her siblings.

The notary acknowledged that she did not discuss the value of the estate or size of the residue with Ms. Bush. It is not enough to show that a testator was intelligent, generally aware of their finances, or historically involved in asset management. Positive proof that a testator was aware of the approximate value of their estate at the time the will was made is required.

The appeal was allowed and the 2018 will held invalid; the estate would be distributed in accordance with the 2001 will and a 2015 codicil.

Takeaways

• Beneficiary involvement in will-preparation, particularly in a fiduciary role like a power of attorney, will attract scrutiny of a court and remains a powerful suspicious circumstance.
• A party asserting the presence of suspicious circumstances only needs to show ‘some evidence,’ to shift the burden of proof.
• Notaries and lawyers should discuss with a will-maker the extent of their estate assets at the time the will is made – relying on past financial knowledge or financial sophistication may not suffice.

In recent decision of Aulinger v. Oda, 2026 BCCA 13, the B.C. Court of Appeal discusses the legal nature of joint wills and mutual wills in B.C. and the effect of a will-maker’s revocation of a joint will on other will-makers.

Background

Johannes and Daniela Siebert, married German citizens, executed a single handwritten will together in Germany in 1995. The will consisted of one sentence and was signed by both spouses:

“In case of our death, we Daniela Siebert and Johannes Siebert, name Mr. Martin Steger and Ms. Gertrud Steger as universal heirs of our entire estate.”

Mr. and Ms. Steger were Ms. Siebert’s parents.  The Sieberts later moved to British Columbia, where they owned property.  Ms. Siebert prepared a new will in B.C. in 2019 and revoked any previous wills; she died shortly thereafter.   Mr. Siebert did not make any fresh wills after 1995, and died in 2022.

Following Mr. Siebert’s death, Ms. Steger applied to the B.C. Supreme Court for a grant of administration and sought to prove the 1995 will in solemn form. Ms. Oda came forward and opposed that application, asserting that she was Mr. Siebert’s spouse at the time of his death. Ms. Oda argued that the 1995 will had been revoked by Ms. Siebert and that therefore Mr. Siebert had died intestate (without a will).

The Chambers judge found that the 1995 will was valid under German law and could be recognized and admitted for probate under the Wills, Estates and Succession Act (WESA) unless it had been revoked. Whether it was revoked by the 2019 will was to be determined by B.C. law. The judge characterized the will as a mutual or joint will but used the terms interchangeably; it was held that the Seiberts intended for the will’s disposition to apply in the event they died at the same time or if one died without having revoked their participation. The Court concluded that Ms. Sieibert revoked the 1995 will for both herself and her husband when making her 2019 will.

Ms. Steger appealed the decision and the Court of Appeal allowed the appeal finding multiple errors, including in the court’s treatment of the legal nature of the will and the effect of Ms. Siebert’s revocation.

Joint Wills and Mutual Wills

The Court of Appeal clarified the distinct legal nature and effect of joint wills and mutual wills.

The Court described joint wills as follows, citing a description in Halsbury’s Laws of England:

257. Joint Wills. A joint will is a will made by two or more testators contained in a single document, duly executed by each testator, and disposing either of their separate properties or of their joint property. It is not, however, recognized in English law as a single will. It is in effect two or more wills; it operates on the death of each testator as his will disposing of his own separate property; …

The Court made clear that the “revocation of a joint will by the testator who dies first is not a revocation of the joint will as it pertains to the surviving testator – it is only a revocation of the revoking testator’s will: WESA, s. 55.”

A mutual will can be contained in a joint will or may be in separate documents. The hallmark of a mutual will is that testators make reciprocal testamentary dispositions pursuant to an agreement not to revoke them once the other has died. For example, two spouses enter into a mutual wills agreement whereby they agree to leave their estate to each other, but also agree that upon the death of the survivor of the two of them that the survivor’s estate (which would include the estate of the spouse who died first) will go to their children. While a mutual will can be revoked before either party’s death, once one testator dies, the other is bound by their agreement. Where the surviving testator tries to revoke, equity will intervene and a constructive trust in favor of the intended beneficiary of the mutual will is imposed.

Analysis

The Court of Appeal found that errors were made in the characterization of the Siebert’s will and found that the 1995 will was a joint will. The Court of Appeal also found errors in the lower court’s interpretation that the 1995 will was only intended to dispose of the Sieberts’ estate to the Stegers in the event they died simultaneously or if one of them died without having revoked their participation; there was no evidence that the Sieberts considered revocation or had a reciprocal agreement.

The Court of Appeal affirmed that as the 1995 will was a joint will, and was therefore at common law two separate wills, Ms. Seibert’s 2019 revocation did not revoke the will for Mr. Seibert. The 1995 will was in effect when Mr. Seibert died in 2022; he did not died intestate.

Takeaways

• Joint wills are not a single will though they are contained in a single document. A joint will operates on the death of each testator as their own separate will.
• One testator’s revocation of a joint will does not revoke it for the other testators.
• A mutual will requires evidence of an agreement not to revoke.

In our estate litigation practice we frequently hear from clients who are deeply concerned about a will made when a parent or loved one was experiencing cognitive decline. This was the situation in the recent decision of Lavictoire v. Schwartz, 2025 BCSC 2565, where the Supreme Court of British Columbia was asked to determine whether a will executed shortly after a diagnosis of moderate to severe dementia could be upheld. The Court concluded it could not.

When cognitive decline intersects with late-life testamentary change, courts are rightly cautious. As the Court observed in Lavictoire, testamentary capacity is a “thorny issue”—particularly where a will represents a sharp departure from a prior estate plan and is made in the shadow of declining cognition.

Background

The deceased executed a new will only weeks after her granddaughter commenced a committeeship petition seeking control of the deceased’s person and estate. That petition followed closely on the heels of specialist medical assessments diagnosing the deceased with moderate to severe dementia.

The deceased had two sons, both of whom predeceased her. One son left two daughters—the plaintiff and her sister—who were the deceased’s only grandchildren. The deceased also had a sister, two nieces, and a nephew.

Under a prior will, the estate was left to the deceased’s two sons, without a gift-over. On that footing, the estate would pass on intestacy to the two granddaughters in equal shares. The new will, executed after the dementia diagnosis, significantly altered that result. It divided the residue equally among six family members and included a gift-over clause among the residual beneficiaries. By the time of the deceased’s death, the practical effect was that four beneficiaries—including the plaintiff—would receive an equal share.

Medical Evidence and the Committeeship Proceeding

In the months leading up to the execution of the impugned will, the deceased experienced marked cognitive decline. She was hospitalized on multiple occasions and assessed by both a geriatric specialist and a psychiatrist. Each observed that she lacked meaningful understanding of her personal care needs and financial affairs.

Both physicians later swore affidavits in the committeeship proceeding. One diagnosed moderate to severe dementia due to Alzheimer’s disease or Lewy Body Dementia; the other diagnosed Lewy Body Dementia. Both found that the deceased was unable to answer basic questions concerning her finances.

The Will-Making Process

Shortly after service of the committeeship materials, one of the deceased’s nieces—later a beneficiary under the new will—contacted counsel to arrange for the preparation of a will.

The drafting solicitor, who was also named as executor, met with the deceased and the niece. The niece acted as a Polish interpreter and assisted with instructions. The solicitor was aware of the committeeship proceeding and that capacity was potentially in issue.

The solicitor completed a “master checklist” during the meeting and recorded conclusions under a heading titled “Testamentary Capacity Assessment.” However, he kept no notes of the questions asked or answers given that led him to believe the deceased had capacity, had no meaningful record of her assets or their value, and had no clear understanding of the terms of the prior will or the implications of the changes being made. Cross-examination left unclear whether dispositive instructions originated from the deceased or the niece.

A Polish-speaking colleague later reviewed the will with the deceased, reading it aloud paragraph by paragraph. The deceased indicated agreement or nodded but asked no questions. The colleague testified that he was satisfied the deceased understood the will.

The Law on Testamentary Capacity

The Court reaffirmed the classic test from Banks v. Goodfellow (1870). Testamentary capacity requires that a will-maker understand:
1. the nature and effect of making a will;
2. the extent of the property being disposed of;
3. the claims of those who might reasonably expect to benefit; and
4. that no disorder of the mind influences the dispositions.

Capacity is a legal, not medical, determination. A diagnosis of dementia—or even the existence of a committeeship—is not dispositive. That said, cognitive impairment sufficient to ground a committeeship demands careful and exacting scrutiny of the evidence.

Suspicious Circumstances and the Burden of Proof

At common law, a will that is duly executed with the required formalities (after a testator has read and appears to understand the terms of the will) gives rise to a rebuttable presumption of knowledge, approval, and testamentary capacity. That presumption, however, falls away where suspicious circumstances are present, shifting the burden of proof to the propounder to prove the will’s validity.

There is no closed list of suspicious circumstances, but beneficiary involvement in the preparation of a will is a familiar and powerful example.

Here, the Court identified several circumstances, including:
– a beneficiary’s instrumental role in arranging the will;
– recent medical diagnoses of moderate to severe dementia;
– medical evidence that the deceased could not answer basic financial questions shortly before the will was made; and
– a marked departure from the prior testamentary scheme.

Taken together, these circumstances displaced the presumption and placed the burden squarely on the propounder.

Failure to Establish Testamentary Capacity

The propounder did not meet that burden. There was no persuasive evidence that the solicitor asked questions capable of eliciting the deceased’s understanding of the nature and effect of the will, the extent of her assets, or the consequences of altering her prior estate plan.

The checklist the solicitor used did not track the Banks v. Goodfellow criteria. The evidence suggested reliance on closed, confirmatory questions. As the Court emphasized, the ability to give rational answers is not enough. A will-maker must be able to hold the essential elements of the testamentary act “in some degree of appreciation as a whole.”

Nor did the mere reading aloud of the will, without probing comprehension, assist in establishing testamentary capacity.

Conclusion

The Court declared the will invalid, concluding that testamentary capacity had not been proven by the propounder on a balance of probabilities.

Key Takeaways

– A diagnosis of dementia does not automatically negate testamentary capacity, but it may rise to the level of a suspicious circumstance.
– Wills made in the shadow of a committeeship application will attract close scrutiny. Drafting solicitors bear heavy responsibility in contexts where a testator is suffering from cognitive decline and should ask—and carefully record—open-ended questions that map onto Banks v. Goodfellow criteria; checklists and yes-or-no answers may not suffice.
– Beneficiary involvement in the will-making process remains one of the most potent suspicious circumstances in estate litigation

A party may file a notice of dispute before a grant is obtained, if they dispute the validity of a will or the authority of another person to apply for a grant in relation to that will.  The filing of a notice of dispute prevents the court registry from issuing a grant (of probate or administration) until the dispute has been determined.

However, if a notice of dispute is not filed in time and the grant is issued, this does not necessarily end the matter – a person may seek an order revoking the grant.

In Narsaiya Estate (Re) 2023 BCSC 1350, the deceased made two wills, one in January 2021 and one in July 2021.  The distribution under the two wills was essentially the same, dividing the estate equally between the deceased’s six children.  The difference between the two wills was the person(s) appointed as executor.  The January will named five of the children as executors.  The July will named only one of the children as executor (Dorothy).

The four other children named as executors under the January Will (i.e. not Dorothy) filed notices of dispute, alleging that Dorothy was unfit to act as executor because she was in a conflict of interest, was hostile to the parties, and was too busy.  They did not contest the validity of the July will.

Next, the four children applied for a grant of probate of the January Will (despite the existence of the July Will).  As part of that application, they needed to confirm that there was no testamentary document that was dated later than the January Will (which was not the case, since the July Will Existed).

The four children obtained a grant of probate under the January Will.  Dorothy applied seeking orders revoking and nullifying the grant of probate of the January Will.

The Court confirmed that it has the jurisdiction to revoke grants of probate.  Courts have jurisdiction to revoke grants of probate where evidence discloses that the grant ought not to have been issued.  There are numerous grounds on which probate can be revoked, including:

1. where subsequent wills have been discovered;
2. where it has been found that the will is otherwise invalid;
3. where it has been determined that the testator is not, in fact, dead;
4. where it is shown that the executor is under a legal disability (minority or mental infirmity); and
5. where probate has been obtained by fraud.

The Court in Narsaiya revoked the grant under the January Will.  Although the July Will was not “subsequently” discovered in the usual sense, there was a later will and its existence was not meaningfully brought to the registrar’s attention prior to the issuance of the grant.  The grant was also made, at a minimum, based on “inaccurate suggestions.”

A will-maker can revoke a will.  There are a number of ways to do so, and there is also a presumption that a will-maker revoked their will if the will was last in the will-maker’s possession and cannot be located.  If the presumption is rebutted by evidence to the contrary, a copy of the will may be submitted for probate instead of the missing original.

First, the ways to revoke a will (other than an electronic will) are set out at section 55(1) of the Wills, Estates and Succession Act [“WESA”]:

1. By another will made by the will-maker made in accordance with WESA;
2. By a written declaration of the will-maker that revokes all or part of a will made in accordance with WESA;
3. By the will-maker, or a person in the presence of the will-maker and by the will-maker’s direction, burning, tearing or destroying all or part of the will in some manner with the intention of revoking all or part of it; or
4. By any other act of the will-maker, or another person in the presence of the will-maker and by the will-maker’s direction, if the court determines under s. 58 that (a) the consequence of the act of the will-maker or the other person is apparent on the face of the will; and (b) the act was done with the intent of the will-maker to revoke the will in whole or in part.

#3 above has two elements:

1. The will must be physically burned, torn or destroyed; and
2. The will-maker must have intended to revoke by that destruction.

In addition to taking one of the active steps above to revoke a will, there is a common law presumption of revocation that may apply in certain circumstances, which has been described as follows:

If a Will last known to be in custody of testator is not found at his death, the presumption is that the testator destroyed it with the intention of revoking it (“animo revocandi”). However, that presumption may be rebutted by evidence, written or oral, of the facts. The strength of the presumption will depend on the character of the custody which the testator had over the Will.

Proof that the will-maker was last in possession and the Will cannot be located leads to the presumed facts of destruction and intention.  The presumption is based upon an assumption that people their important documents safe, and so if an important document like a Will is missing it is more likely than not that the testator intentionally destroyed it.

However, the presumption can be rebutted by evidence.  For example, it could be shown that the will was lost or misplaced.

This issue was recently considered by the B.C. Supreme Court in Galloway Estate (Re) 2023 BCSC 1204.

In Galloway, the deceased made a Will.  He was given the original Will and his law firm retained a copy.  The deceased had no children and no spouse at the time of his death.  Both his parents were deceased and he had one sister.  If there was no will and his estate passed on an intestacy, it would go to his sister.  The Will left his estate to his mother’s god-daughter (who was also named as executor).

The god-daughter argued that the Will was valid (so that she would receive the entire estate).  The sister relied upon the common law presumption of revocation, and argued that the deceased revoked the Will and died intestate (so that she would receive the entire estate).

The god-daughter performed a diligent search of all reasonable places, and no Will was located.

The Court observed that all relevant facts in a case must be considered, and they referred to the following non-exhaustive list of factors from another B.C. Supreme Court case:

• whether the terms of the will are reasonable;
• whether the deceased continued to have good relationships with the beneficiaries under the will up to the date of death;
• whether personal effects of the deceased were destroyed prior to the search for the will being carried out;
• the nature and character of the deceased in terms of taking care of their personal effects;
• whether there were any dispositions of property that support or contradict the terms of the will;
• statements made by the testator confirming or contradicting the terms of distribution set out in the will;
• whether the deceased was of the character to store valuable papers and whether the deceased had a safe place to store papers;
• whether there is evidence that the deceased understood the consequences of not having a will, and the effect of an intestacy; and
• whether the deceased made statements indicating the deceased had a will.

The Court in Galloway held that the presumption of revocation was rebutted.  It was more likely than not that the Will was lost or misplaced by the Deceased, or accidently disposed of by the specialty trauma cleaning company that cleaned the deceased’s property to make it safe to access after death (the deceased having been discovered approximately six weeks after his death).

The Court considered the various facts, but a key factor was that the family had been in previous litigation, in which the deceased was “against” his sister.  If the deceased died without a will, this would give his sister the very property that the litigation was conducted to reclaim.  If he died intestate, then his sister would be relieved of her obligation to pay special costs in that prior litigation, but the deceased had been actively pursuing payment of the cost awards by his sister at his death.

The Court pronounced the force and validity of the Will in solemn form, and ordered that a copy of the Will be admitted to probate.

This case illustrates the complications that may arise if the original will cannot be located.  Of course this would have been avoided if the deceased had kept his original in a safe place, and had advised someone of the location of the original will.

In B.C., there are formal requirements for making a will.  These include requirements that the will be in writing, signed at the end by the will-maker in the presence of two or more witnesses who are present at the same time, and signed by two or more of the witnesses in the presence of the will-maker (see s. 37 of the Wills, Estates and Succession Act (“WESA”).

However, the court may make an order a document be fully effective as though it was the will or part of the will of the deceased person even though it does not comply with WESA, if the court is satisfied that the document represents the testamentary intentions of the deceased person (see s. 58 of WESA).

I have previously posted about s. 58 cases here.

The B.C. Supreme Court recently set out a succinct summary of the principles to be considered on a s. 58 application in Re: Clarke Estate 2023 BCSC 103:

[39]       From the foregoing authorities, I derive the following principles:

a)  The onus in this matter is on the petitioner to prove, on a balance of probabilities, that:

i)  the document is authentic; and

ii) the document embodies the fixed and final, as opposed to irrevocable, testamentary intentions of the deceased.

b)  The factors to take into account in determining whether the document contains the testamentary intentions of the deceased include:

i)  the presence of the deceased’s signature,

ii)  the deceased’s handwriting,

iii)  witness signatures,

iv)  revocation of previous wills,

v)  funeral arrangements,

vi)  specific bequests,

vii)  the title of the documentation,

viii)  such other factors as may be relevant given the context, and

c)  the material time for determining the testamentary intentions can vary depending on the circumstances, but in many if not most cases the material time is when the document was prepared and executed.

In Clarke, the Court was presented with two documents:

1. A document that was prepared by a lawyer or notary and dated December 22, 1994, which was properly witnessed.  This document left the residue of the deceased’s estate to the deceased’s stepdaughter; and
2. A document that was handwritten and had only one witness, dated April 25, 2013.  This document left the residue to the deceased’s brother.

The Court concluded that the handwritten will represented the fixed and final testamentary intentions of the deceased and that it was fully effective as the will of the deceased.

The types of documents that parties seek to have declared to be effective as wills vary, as does the extent to which these documents have the characteristics you would expect to find in a “proper” will.

The handwritten document at issue in Clarke had had many of the characteristics of a will although it did not meet all formal requirements. The document was in the deceased’s handwriting, it described itself three times as the last will and testament of the deceased, and it revoked all former wills.  It was also signed by the deceased and signed by one witness.  In the circumstances, the Court was prepared to order that the handwritten document was fully effective as the will of the deceased.

It should be noted that both parties were entitled to their full costs and expenses to be paid from the estate.

When there is a challenge to the validity of a will on the basis that (1) the will-maker lacked testamentary capacity, or (2) the will-maker did not have knowledge and approval of the contents of the will, the person seeking to prove the validity of the will (the “propounder”) is assisted by the presumption of due execution.

The presumption of due execution provides that if a will is properly executed in compliance with the Wills, Estates and Succession Act (“WESA“), then it is presumed that the will-maker had knowledge and approval and testamentary capacity, subject to evidence of suspicious circumstances.  It then falls on the person challenging the validity of the will to rebut the presumption.

Section 37(1) of WESA sets out the formalities for making a will:

How to make a valid will

37   (1) To be valid, a will must be

(a) in writing,

(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as the will-maker’s signature, in the presence of 2 or more witnesses present at the same time, and

(c) signed by 2 or more of the witnesses in the presence of the will-maker…

If the will has been validly executed, then the propounder can seek to rely upon the presumption.

The importance of the presumption of due exectuion is illustrated by the recent decision of the B.C. Supreme Court in Grace Estate (Re) 2022 BCSC 1283.

In Grace, the deceased’s father was named as executor in the will.  The deceased’s mother challenged the validity of the will, arguing that the deceased (her daughter) did not read or know the contents of the will before signing it, that she signed the will under suspicious circumstances, and that she may have lacked capacity.

At the first hearing, the court held that there was not sufficient evidence to prove that the will was read by or to the deceased.  That meant there was no presumption of testamentary capacity (another presumption available to the propounder of a will), and the father must prove both that the deceased had capacity, and that she knew and approved of the contents of the will.  The father had failed to prove the will in solemn form by way of application (on affidavit evidence), and the matter was referred to the trial list for proof in solemn form.

However, neither counsel at the first hearing advised the court of the cases discussing the presumption of due execution.  In light of those cases, the father applied for a reconsideration of the original decision.  The order arising from the original decision had not yet been entered, which meant that the original judge could hear further submissions.  The father argued (and the court agreed) that had case authorities on the presumption of due execution been brought to the court’s attention, they would have substantially altered the result.

The court exercised its discretion to reconsider its decision, and concluded that the father has the benefit of the presumption of due execution, and has proven the will in solemn form.  The will had been validly executed in compliance with WESA, and so the facts gave rise to a rebuttable presumption that the deceased knew and approved the contents of the will.  There were no suspicious circumstances.  The mother swore in her affidavit that she asked her daughter whether she had read the will, and her daughter had said “no”.  However, this was not sufficient to rebut the presumption (and was inconsistent with all of the other evidence surrounding the deceased’s intentions)