Court considers revocation of a will

Goold Estate v. Ashton | 2017 ABCA 295 | Alberta Court of Appeal

Estates -- Revocation and alteration of will -- Revocation -- General principles

Testatrix prepared valid holograph will that revoked her prior formal will -- When she died, original of holograph will could not be located -- Chambers judge admitted holograph will for probate -- Chambers judge recognized presumption that where original will cannot be found after testatrix’s death, testatrix destroyed it with intention of revoking it, but found that presumption of destruction had been rebutted -- Estate appealed finding that holograph will was valid -- Appeal dismissed -- Presumption of destruction with intention to revoke can be rebutted by evidence showing on balance of probabilities that testatrix did not destroy will or intend to revoke it -- Chambers judge heard evidence that testatrix suffered from Alzheimer’s disease and began to lose capacity, and that doctor had issued declaration of incapacity -- For significant portion of time during which holograph will was under testatrix’s control, she likely lacked capacity to revoke it -- Chambers judge carefully weighed evidence that supported revocation by destruction, as well as evidence that it was unlikely that testatrix destroyed her will -- Underlying findings about capacity and destruction were findings of fact, resulting from weighing of evidence, and chambers judge’s conclusions would not be interfered with on appeal unless they reflected palpable and overriding error -- There was evidence to support conclusion that evidence, on balance, rebutted presumption that will had been destroyed -- No reviewable error had been shown.