In the recent case of Kacin v Kacin, 2024 ONSC 3345, the Superior Court of Justice for Ontario looked at whether a copy of a testamentary document could meet the requirements to prove a lost will.
In this case, the deceased, Lidia passed away in early 2023 and was survived by her three children: Yelka, who had maintained a relationship with Lidia until her death and who was appointed as Lidia's guardian and trustee in 2020; and Edward and Martina, whom Lidia had not seen since 2011. The deceased had suffered from poor mental life throughout her life, and in 2020, Yelka was appointed as Lidia's trustee and guardian.
Lidia had had a will prepared in 2001 which left everything to Yelka, but in 2011 she had a new will (the "2011 Will") and new powers of attorney prepared which named Martina as the sole trustee and beneficiary of her estate. The estate was relatively small and was comprised of $175,000 in GICs. The reason for the change was that Lidia felt that she had provided significant gifts to Yelka over the years and believed that Edward was financially independent. However, when Lidia died, the original 2011 Will could not be located, although a copy was held by the drafting lawyers.
Martina sought to have the 2011 Will probated in its copy form, which was opposed by Yelka and Edward who relied on the presumption of destruction. Martina's response was that Lidia's poor mental health meant that she did not have the capacity necessary to revoke the 2011 Will.
The Court found that the issues to be determined at a hearing on the merits were whether Martina had proven the four elements required to probate the 2011 Will, as set out in Sorkos v Cowderoy, 2006 CanLII 31722 (ON CA), and whether Yelka was entitled to compensation for the expenses she incurred while acting as Lidia's guardian for nearly three years. The four elements necessary to probate the Will set out in Sorkos v Cowderoy at para 8 are as follows:
- Due execution of the will;
- Particulars tracing possession of the will to the date of death, and afterwards if the will was lost after death;
- Rebuttal of the presumption that the will was destroyed by the testator with the intention of revoking it; and
- Proof of the contents of the lost will.
The parties agreed that only the second and third elements were at issue, as Martina could satisfy the first and fourth elements.
The Court was also asked to consider whether an Estate Trustee should be appointed. Martina opposed this idea as she found it to be costly and unnecessary, and believed that an Estate Mediator would be a better choice. However, the Court relied on Baran v Cranston, 2020 ONSC 589 at para 28 and noted that "An Estate Trustee allows for a level playing field in managing the affairs and funds of an estate particularly where there are conflicts between the trustee and beneficiaries. Consequently, the appointment of an Estate Trustee during litigation is not an extraordinary measure and the court should refuse such an appointment only in the clearest of cases."
Finally, the Court determined that some productions would be allowed, including Lidia's medical records that had already been obtained by Yelka and the legal file associated with the drafting of the 2011 Will, but that the requests for financial disclosure and other records of the deceased made by Martina were overly broad.
This is an ongoing matter, and the Court's judgment on the second and third elements of the test from Sorkos v Cowderoy will be interesting to read once decided.
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