Probate: Missing bodies, lost wills, guardianship Flashcards
Lost bodies
Proof of death act, statutes allow us to get a declaration of death to get the will started
Lost bodies and insurance claims
- 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
Date of death for lost body
Court will give actual date on which they are presumed to have died
How long do they have to be gone? (ONT and NB)
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
Absentee provision
Allow that if you can’t convince court they are dead you can apply for order declaring them absentee
Common law rule for length of time before presumed dead
7 years
Re Miller
-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.
Ontarios conveyancing of law deals with life estate and prolonging death
if they can’t produce the life estate holder for a certain period of time you can get a declaration
Property in multiple jurisdictions- Armed Forces
If you disappear in combat there is a separate and distinct set of rules that apply to you under national defence act
Lost wills
If actual copy is lost then if you can prove it existed its not completely gone Must also prove formalities were met.
Sudgen v Lord St Leonard’s
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.
Additional hurdle to party seeking to probate a lost will
if the will was last in the deceased’s possession, then the loss triggers a presumption that it was destroyed animo revocandi.
Standard of proof for lost wills
beyond a reasonable doubt
Onus for proving lost will
On person trying to prove the will, depends on circumstances of lost will case
What do you have to prove for a lost will?
(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)