Commercial Litigation and Dispute Resolution Blog

When you sign a will, the will is intended after your death to govern the distribution of your estate in keeping with your wishes.  A will is the direction to your executor about which people, organizations or causes you want to benefit. 

Preparing a will is serious business.  In British Columbia, if you do not have a will, your estate will be treated as an “intestacy” and its distribution will be confined to a scheme of parentelic distribution as set out in the Wills, Estates & Succession Act (“WESA”).  The word “parentelic” refers to looking down the line of descendants from the deceased’s ancestors^[1]. Generally speaking, under a parentelic distribution scheme, the assets are first passed to your spouse (if any) and descendants (if any), failing which assets are distributed to your parents, and failing which assets are distributed to your siblings.  If your siblings are not alive, the WESA provides for distribution to your sibling’s children (i.e. your nieces and nephews).  

Equally important as preparing your will is keeping your original will in a safe place so that it can be found after your death.  If your will is lost, your considered wishes on the distribution of your estate may well be defeated.  Your estate may end up in the hands of distant, unimportant relatives in accordance with WESA’s parentelic distribution scheme. 

A recent court case illustrates the perils and unhappy consequences of failing to keep a will in a safe and secure place.  In Re Finsant Estate, the B.C. Supreme Court was required to address the question of what to do with Rosemary Finsant’s estate when her original will could not be found.  The will, executed 20 years before her death, provided that her estate was to go to her favourite grand-niece with whom she was very close.  On an intestacy, her estate was to go to two living niblings (i.e. children of her siblings, in other words, nieces and nephews) with whom Ms. Finsant had “relatively limited” contact. 

Ms. Finsant was unmarried and had no children or surviving siblings.  No one knew where she kept her will and, after she died, it could not be found despite an extensive search.  A Wills Notice search indicated that the original will was supposed to be in a safety deposit box in Campbell River; however, the court noted that “no such safety deposit box in fact existed”.  The Wills Notice search revealed that Ms. Finsant’s will had been prepared by a local notary public who was able to produce an unsigned copy and to confirm the original had been given to Ms. Finsant. 

In legal terms, the court had to decide whether Ms. Finsant’s will had been lost, stolen, or accidentally destroyed or, on the other hand, whether it had been intentionally destroyed.  As the judge noted, the court was being asked to “provide legal certainty when factual certainty is not available”, a task courts are often required to undertake in cases like this.  As in many areas of the law, the court relied on earlier cases which established the legal tools to use in resolving a problem like this.  First, the court started with the long-established “presumption of destruction” which holds that where a will was last known to be in the possession of the deceased and is not found after death, it is presumed to have been destroyed by the deceased.  Second, as with all legal presumptions, the presumption of destruction is rebuttable where the party attempting to rely on a non‑original copy of a will can establish, on a balance of probabilities, that the original will was inadvertently lost or misplaced. 

Using these legal tools, the court started the required analysis by presuming Ms. Finsant’s will had been revoked on purpose and then assessed whether to disregard the presumption based on evidence that suggested the will had not in fact been intentionally revoked.  As the judge explained it:

The ultimate issue is whether, . . . , the will was more likely to have been deliberately destroyed because the testator had a change of heart or was more likely lost, stolen or accidentally destroyed. 

In helping to answer this question, past cases identify a number of factors to consider in assessing the evidence, including: whether the will’s terms were reasonable; whether the deceased continued to have good relationships with the beneficiaries; whether, when and how any of the deceased’s belongings or papers were destroyed; and the nature and character of the deceased in taking care of their personal effects.  In the case of Ms. Finsant, the court concluded that there was “very little evidence one way or the other about what happened to the will” and that the “most probable inference was that there was no will to be found”.  In reaching this decision and holding in favour of an intestacy, the court commented that “common law presumptions are not as satisfying a basis for finding facts as actual evidence but they have the merit of providing some baseline for decision-making when certainty is not attainable.” 

Whether Ms. Finsant meant to revoke the bequest of her estate to her favourite grand-niece or not will never be known.  What is known is that the only person she specifically identified as her beneficiary did not inherit and, instead, the estate went on an intestacy to Ms. Finsant’s living niblings whom she only ever saw occasionally.

If you make a will, keep it in a safe place, tell those close to you where it is and file a Wills Notice with the B.C. Department of Vital Statistics.  If you change your mind about your estate, make a new will and let those close to you know.  Each of these steps will avoid the unfortunate circumstances that befell Ms. Finsant and her grand-niece. 

^{[1] Government of British Columbia, Part 3 of Wills, Estates and Succession Act – When a Person Dies Without a Will, online: < https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/legislation-policy/wesa/part3.pdf >.}