Probate: Missing bodies, lost wills, guardianship

Question 1

Lost bodies

Answer 1

Proof of death act, statutes allow us to get a declaration of death to get the will started

Question 2

Lost bodies and insurance claims

Answer 2

• People missing and not proven dead can be an issue for insurance
• MA, SK, NB have their own schemes so not sufficient to go through court have to go through insurance system

Question 3

Date of death for lost body

Answer 3

Court will give actual date on which they are presumed to have died

Question 4

How long do they have to be gone? (ONT and NB)

Answer 4

ONT: 7 years missing or significant issue of peril (ex: if in 9/11)

NB: no set period of time but have to convince the court there is sufficient evidence to presume it

Question 5

Absentee provision

Answer 5

Allow that if you can’t convince court they are dead you can apply for order declaring them absentee

Question 6

Common law rule for length of time before presumed dead

Answer 6

7 years

Question 7

Re Miller

Answer 7

-Common law presumption of death

Facts: went to Toronto island for the day and never came back

Ratio: court held it had jurisdiction to fix date of death. All due and appropriate inquiries were made in the search for W, based on this, the court presumed W to be dead.

Question 8

Ontarios conveyancing of law deals with life estate and prolonging death

Answer 8

if they can’t produce the life estate holder for a certain period of time you can get a declaration

Question 9

Property in multiple jurisdictions- Armed Forces

Answer 9

If you disappear in combat there is a separate and distinct set of rules that apply to you under national defence act

Question 10

Lost wills

Answer 10

If actual copy is lost then if you can prove it existed its not completely gone Must also prove formalities were met.

Question 11

Sudgen v Lord St Leonard’s

Answer 11

Facts: Lord died with big estate and will could not be found, outrageous he wouldn’t have one because he was a wills expert. Will proven by daughter who was made to sit through a nightly recitation of his will.

Ratio: admitted her memory of the will. probably wouldn’t fly today.

Question 12

Additional hurdle to party seeking to probate a lost will

Answer 12

if the will was last in the deceased’s possession, then the loss triggers a presumption that it was destroyed animo revocandi.

Question 13

Standard of proof for lost wills

Answer 13

beyond a reasonable doubt

Question 14

Onus for proving lost will

Answer 14

On person trying to prove the will, depends on circumstances of lost will case

Question 15

What do you have to prove for a lost will?

Answer 15

(1) Due execution (valid)
(2) Particulars as to tracing possession of will to date of death and after if lost after death
(3) May have to rebut the presumption will was destroyed by testator
(4) Contents of lost will (in ONT beyond a reasonable doubt, unclear in NB)

Question 16

Due execution

Answer 16

Most common proof= solicitor notes

Question 17

Tracing possession

Answer 17

If last traced to hands of testator, rebuttable presumption that they did not want it to take effect

Question 18

Onus for tracing possession

Answer 18

On party relying on presumption of revocation to establish on a balance of probabilities that it was last in their possession

Question 19

Sorkos v Cowderoy

Answer 19

• Sets out the test for proving a lost will
• You have to prove that the last known actual location of the executed will was in the hands of the testator for the presumption to arise.

Question 20

Things to consider when trying to rebut presumption of revocation

Answer 20

A) The terms of the will and whether they were reasonable (Was it a will that he would have no reason to revoke? Did he have good relationships?)
B) Other reasons it could be missing
C) Nature and character of deceased in taking care of personal objects
D) whether they had copy of will or real will
E) any disposition of property that contradicts the will—lots of inter vivos gifts of stuff in the will
F) Statements made by testator that contradicted will
G) Statements of whether they had a will
H) Testators have to have capacity to revoke something through destruction—if someone was in late stages of degenerative mental illness then presumption would never arise even if will last traced to their hands

Question 21

Proving contents of a will

Answer 21

Best way is a photocopy or lawyer testimony. May be possible to only prove some parts BARD but the parts you can prove you can probate.

Question 22

Guardianship

Answer 22

When you appoint a guardian in your will it doesn’t mean for sure it will be them, just shows preference. Anyone can apply to be a guardian.

Question 23

Legal custody

Answer 23

If you do not have legal custody you don’t have authority to appoint guardian