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Need to retain original wills emphasized

Ruling means $7-million estate will go to long-term care centre
|Written By Alex Robinson
Need to retain original wills emphasized
Lionel Tupman says it is important to know who holds the burden of proof when it comes to rebutting the presumption that a deceased person intended to destroy a will. Photo: Robin Kuniski

An Ontario judge has found that a deceased woman, who had a $7-million estate, did not mean to revoke her will that made a retirement home’s foundation her beneficiary.

The decision in Levitz v. Hillel Lodge Long Term Care Foundation concerned a lost original will of Sarah Stoller, who died in 2016, and whether the presumption that she had intentionally destroyed her will had been rebutted.

Under a will she created in 2010, Stoller made the Hillel Lodge Long Term Care Centre the beneficiary of a brass candelabrum, and the centre’s foundation became the sole beneficiary of the residue of her estate. Ontario Superior Court Justice Robyn Ryan Bell found that Stoller did not intentionally destroy her will, confirming the retirement home’s foundation as the sole beneficiary.

Stoller was not a resident of Hillel Lodge, but she had donated around $85,000 to the foundation during the last five years of her life.

Estate lawyers say the decision is a reminder to practitioners who draft wills about the importance of the original will.

Lawyers generally used to offer to keep original wills in their vaults, but the general practice recently in Ontario has become to encourage clients to take the originals with them.

But the decision shows practitioners might want to stray away from that or at least communicate to clients in writing the importance of retaining the original will, lawyers say.

“If the client is going to take the original will with them, they [need] to keep it in a safe place and [make sure] the original can be located, and the trustee will know where to find it because a photocopy will not suffice,” says Martin Black, the lawyer who represented Hillel Lodge Long Term Care Centre in the matter.

When Stoller created her 2010 will, she told her lawyer she would put it in a safety deposit box, and her lawyer kept a signed copy. But after her death, the original will was nowhere to be found, and a “trued up” copy was found in her apartment.

Lionel Tupman, an estate lawyer who was not involved in the case, says the decision is consistent with a 2006 Court of Appeal decision in Sorkos v. Cowderoy, which sets out the test for proving a lost will.

The Levitz decision was concerned only with the last part of the test, which was whether the presumption that the deceased intended to destroy the will had been rebutted.

“It’s important to know who bears the burden of proof with respect to rebutting the presumption of revocation,” says Tupman, a partner with WEL Partners.

“The propounder of the lost will bears the burden of proof.”

The Succession Law Reform Act holds that, for a will to be revoked, it must be destroyed with the intention of revoking it. So, in order to rebut the presumption, it must be shown that either the will was not destroyed or that there was no intention to revoke it.

The judge also referred to s. 13 of the Evidence Act, which requires that evidence on matters before the testator’s death submitted by an opposite party must be corroborated by some other material evidence.

Yasmin Vinograd, the lawyer who represented the executrix of Stoller’s estate, says that the discussion in the decision regarding the rules of evidence serves as a useful reminder of the requirement for corroboration.

“As stated by the court, the corroborating evidence needs to be independent and must materially enhance the probability of the truth of the statement,” she says.

If the judge had found the presumption had not been rebutted, a revocation of the will would result in intestacy, meaning her estate would go to her next of kin, her niece and nephew, Nancy-Lynn and Bryan Stoller.

They had argued that the evidence showed that, in the weeks before their aunt’s death, she was aware of and concerned about the state of her will and was considering changes.

But the judge rejected this argument, finding there was no evidence before her that Stoller intended to make substantive changes to her will in the weeks before her death.

Lawyers say litigation could have been voided had the original will been found.

It is a valuable reminder of the importance of safekeeping the original will and of advising the executor of the location.

“However, wills can be inadvertently misplaced and it is important to remember that the Rules of Civil Procedure provide this mechanism to deal with a lost will,” says Vinograd.

Bryan Stoller, the deceased’s nephew, says his lawyer advised him against filing an appeal of the decision.             

This story was updated Nov. 28, 2017 to correct a quote made by Lionel Tupman, due to an error by Law Times staff.
The quote was changed to say "the propounder of the lost will bears the burden of proof."

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