The Presumption of Revocation
It is always recommended that you retain the original signed copy of your Will in a secure, waterproof and fireproof location. A photocopy, colour copy, or scanned copy of your signed Will is not the same as the original copy. The reason is because of the presumption of revocation.
It is established law that where it is known that a testator or testatrix makes a will, but the original of the will cannot be located after his or her death, there is a presumption that he or she destroyed the will with intention of revoking it (Pigeon Estate v. Major, [1930] SCR 242). However, this is a rebuttable presumption, meaning that the presumption of destruction with intention to revoke can be rebutted by evidence showing that the testator or testatrix did not destroy the will or intend to revoke the will. The applicable standard of proof is a civil one, meaning that the evidence shown must be proof on a balance of probabilities. That said, after someone passes away, it is often difficult if not impossible to provide evidence that he or she did not destroy the will or intend to revoke the will.
The recent Alberta Court of Appeal case, Goold Estate v. Ashton, 2017 ABCA 295, confirmed the above principles, showing that the presumption of revocation is not only alive and well in Alberta, but also active and litigated.
If you have lost, misplaced or inadvertently destroyed the original signed copy of your Will, it would be appropriate for you to meet with a lawyer to have a new Will prepared for you, and to ensure that you store your new Will in a secure, waterproof and fireproof location.
