Probate Issue: The Lost Will

Oct 26, 2017

In the “typical” estate administration file, locating the original Will of the deceased is not difficult.Often this is because the lawyer who drafted the Will holds the document for safekeeping in his or her vault.

There are a few reasons why lawyers like to keep the original Wills of their clients rather than letting the clients take their Wills with them.One of those reasons?Clients have a bad habit of losing their Wills.

I’ve encountered the lost Will scenario several times over the years.Although this is not an ideal situation, it is possible for an executor to obtain a Certificate of Appointment of Estate Trustee with a Will (i.e. “probate” the Will) without the original signed document. Once the Will has been probated in this way, the administration of the estate can usually proceed in the regular way.

How does an executor proceed if he or she can’t find the original Will of the deceased?  One key requirement when seeking to probate a lost Will is establishing for the Court that the deceased did not intentionally destroy his or her Will.If a Will can’t be found after death, and if the Will was last seen in the hands of the deceased, there is a presumption under Ontario law that the deceased destroyed the Will with an intention of revoking the document.In other words, the Will is presumed invalid.In order to probate a lost Will, the executor needs to overcome that presumption.

In rebutting the presumption of revocation, it is important to show that the Will was either not in the possession of the deceased on his or her death, or that the deceased would not have destroyed the Will with the intention of revoking it.This may take the form of explaining to the Court how the Will was lost.For example, the deceased may have moved a number of times during his lifetime and lost various documents in the shuffle.The executor may also seek to establish that the deceased would not have wanted to revoke the Will and die intestate.

Even if it can be established that the deceased did not intentionally destroy the Will, it is still necessary to prove the actual terms of the Will.Ideally, the executor will have a photocopy of the signed Will, and he or she will simply present this photocopy to the Court for probate.

If no photocopy of the signed Will exists, it is still technically possible for the executor to probate the Will if he or she can prove the terms of the Will.This could take the form of presenting an unsigned copy of the Will.If no written evidence of the terms of the Will exists, however, a Court may be willing to grant probate on the basis of the recollection of a person familiar with the Will.I would expect a Court in these circumstances to require a high degree of specificity regarding those terms, as well as a credible explanation as to why the person providing the evidence has this knowledge.  If no signed copy of the Will exists, proving that it was signed in the proper way (a requirement whenever one is probating a Will) could also pose a challenge.

In most of the lost Will cases that I have encountered in my own practice, a photocopy of the signed Will survived, and the executor and all beneficiaries (those under the Will, and those who would be entitled to inherit had the deceased died without a Will) have all agreed that the Will was lost rather than revoked by the deceased.In those cases, my task has been to provide the Court with a reasonable evidentiary basis on which to conclude that the deceased did not intentionally revoke the Will.The required Court application is done “over the counter”, with no hearing.

If not all of the potential beneficiaries in a lost Will case agree that that the Will should nonetheless be probated, then the parties will likely find themselves in a more formal litigation process.Such a process, of course, means delay and increased legal costs.

The most important lesson from the lost Will cases is that after they sign a Will, individuals should do their best to ensure their documents are held safely pending their deaths.  In my view, the best option in this regard is leaving the Will with the drafting lawyer so that it can be secured in the lawyer’s vault.  Those executors who do encounter the lost Will situation are best advised to retain an experienced estate lawyer to help ensure an orderly probate process.

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