What happens if when you die, an original copy of your will cannot be located? That was the issue in the recent BC Supreme Court decision Thierman Estate v. Thurman. The deceased (Mr. Thierman) left a copy of his will in a dresser drawer in his bedroom. However, at the time of his death, the original was nowhere to be found. The evidence indicated that Mr. Thierman had received an original copy of his will after it was mailed to him by his lawyer, that he had likely deposited his original will in his safety deposit box shortly after receiving it, and that he also accessed his safety deposit box shortly before his death. The court had to decide whether Mr. Thierman destroyed his will with the intention of revoking it, or if he simply misplaced it.
If a will was last known to be in the possession of the will-maker and cannot be located on their death, there is a presumption in law that the will was destroyed by the will-maker with the intention of revoking it. However, this presumption can be rebutted by evidence indicating that the deceased did not intend to revoke his or her will. In Thierman, the court concluded that this presumption was not rebutted. Some of the factors that led to this conclusion are as follows:
- The primary beneficiary under Mr. Thierman’s will was his son David, who lived with him. Towards the end of his life, Mr. Thierman became quite ill and often depended on David to care for him. However, the year before his death, Mr. Thierman complained to his other children that David was no longer taking adequate care of him, and that on several occasions David would ignore his requests for assistance;
- Mr. Thierman accessed his safety deposit box the day before he was admitted to the hospital for a serious operation (complications from this operation resulted in his death); and
- Mr. Thierman was known to be an organized man and was generally careful about his important papers and documents. His family members believed that it was very unlikely that he lost or misplaced his will.
This case is an important reminder to keep your original will in a safe place. It is also a good idea to file (or have your lawyer file) a wills notice in the wills registry maintained by the Vital Statistics Agency to disclose the date and location of your will.