Animo Revocandi is a Latin term which means the intention to revoke. It is the state of mind to revoke, recall or annul.
When an individual passes away, with a will, but the original signed, witnessed will cannot be located the law presumes that the testator intentionally destroyed the Will. Absent a rebuttal of this presumption the individual’s estate will be administered in accordance with a prior will, provided the original can be found, or the individual will result in an intestacy.
In Sorkos v. Cowderoy, 2006, the Ontario Court of Appeal found inter alia that in order to prove a lost will, an applicant must:
- Provide proof of the due execution of the will;
- Provide particulars which trace possession of the will to the date of the testator’s death, and afterwards if the will was lost after death;
- Provide proof of the contents of the will; and,
- Rebut the presumption that the will was destroyed by the testator with the intention of revoking it.
Subsection 15(d) of the Succession Law Reform Act requires that in order for its revocation to be effective, a will must be destroyed by “burning, tearing or otherwise destroying it by the testator or by some other person in his or her presence and by his or her direction with the intention of revoking it”.
Therefore, there must be both the destruction of a will and the actual intention to revoke it.
In order to rebut the presumption, the Applicant must demonstrate either (i) that the Will was not destroyed; or (ii) that there was no intention by the testator to revoke the Will.
In Levitz v. Hillel Lodge Long Term Care Foundation, 2017, relying on the Alberta Court decision in Goold Estate v. Ashton 2016 – later upheld on Appeal,the Hon. Madam Justice Robyn M. Ryan Bell at paragraph 19 of her reasons for decision found that the following factors were relevant to her consideration of the evidence:
- Whether the terms of the Will are reasonable;
- The deceased’s relationship with the beneficiary(ies);
- Whether the deceased’s personal effects were destroyed prior to the search for the Will being carried out;
- The deceased’s nature and character in taking care of her personal effects;
- Whether there were any dispositions of property during the deceased’s lifetime which confirm or contradict the terms of the copy of the Will sought to be probated;
- Statements made by the deceased which confirm or contradict 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 the papers;
- Whether there is evidence that the deceased understood the consequences of not having a will and the effects of an intestacy; and,
- Whether the deceased made adequate statements to the effect that she had a Will.
In Goold Estate v. Ashton 2016, the applicants relied on the presumption of animo revocandi and took the position that the deceased’s will was destroyed and that therefore the administration of the deceased’s estate should proceed as an intestacy. The Court found in favour of the Respondents and found inter alia that the Applicants had not met the burden in establishing that the Will was destroyed while the Deceased had the requisite capacity to do so and, in any event, that there was sufficient evidence to rebut the presumption that the Deceased intended to revoke her will.
It is important to note that the presumption of revocation only applies if the Will can be traced to the testator. When the will is in the possession of a third party, such as a lawyer, or a friend of the Deceased’s and is lost or destroyed, the presumption of revocation does not apply.
This was the case in Sorkos v. Cowderoy, 2006 where the Will was traced into the possession of the Applicant, Mr. Sorkos, the Deceased’s friend and whom the Deceased entrusted with the Will and assumed he had kept the Will for safekeeping. The Court of Appeal in upholding the decision at first instance confirmed at paragraph 12 of its reasons for decision that the presumption of revocation would not apply since the originally executed Will was not in the testator’s possession at the time it went missing.
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