While grieving the loss of a loved one, it can be challenging to know what steps to take. However, if a valid Will has been prepared, this can help take some of the pressure off of the executor by outlining who will inherit what and confirming what rules apply to the administration of the estate. Often, if the deceased left behind an estate plan, the appointed executor(s) will know where to look for a Will. But what happens when a Will cannot be located?

Substantial Efforts Must Be Made to Locate the Will

Sometimes an individual will fail to provide clear instructions as to whether they made a Will or where it is kept. In Ontario, there is no requirement for a Will to be registered in a central registry. As a result, family members may be unable to find their deceased loved one’s estate documents.

Generally, there must be an extensive effort to locate a Will before a court will conclude that it cannot be found (and, as a result, the estate declared an intestacy). Because only one original copy of a Will should exist, if it is not accessible for an unforeseen reason, questions may arise regarding the testator’s intentions.

Common Places to Look for a Will

A loved one may think they knew the deceased’s safe hiding places. But, if nothing turns up, some common ways to attempt to locate a Will may include:

  • Reviewing personal paperwork and filing cabinets;
  • Checking safety deposit boxes;
  • Contacting the lawyer(s) who the deceased might have; and
  • Advertising to other lawyers through the Bar Association.

If the search remains unsuccessful, an individual may be required to apply to the court to establish that they have made reasonable efforts to locate a Will. For this reason, keeping a record of all search efforts is vital.

Did the Testator Intend to Revoke the Will?

If the testator took possession of the original Will after signing a new one and had the opportunity to destroy the original, there may be a presumption that they have done so. This presumption may be overcome depending on the circumstances.

If a Will is not located, an individual who applies to the court for estate administration will be required to prove their efforts to find it. However, if an original Will that predates the last known Will is found, questions may arise as to whether the deceased had actually revoked the original. If it is deemed that the older Will is valid, it might be eligible to be probated. If not, the estate will proceed under the rules of intestacy (i.e., as if no Will existed, with the estate to be administered as per intestate succession laws).

Is a Photocopy of a Will as Good as the Original?

In some cases, a draft or copy of the testator’s Will may be located while the location of the original remains unknown. If this happens, probate may still be able to take place. However, unique rules and processes apply that may require extra time and expense. Generally, supporting documents such as affidavits from the testator’s lawyer who prepared the Will and the deceased’s executor may be needed to prove the photocopy is a copy of the original Will.

Proving the Deceased’s Wishes in Court

Rule 75.02 of the Ontario Rules of Civil Procedure outlines the procedure for proving a lost or destroyed Will by stating that:

“75.02 The validity and contents of a will that has been lost or destroyed may be proved on an application,

(a) by affidavit evidence without appearance, where all persons who have a financial interest in the estate consent to the proof; or

(b) in the manner provided by the court in an order giving directions made under rule 75.06. O. Reg. 484/94, s. 12.”

If only a copy is available, the applicant will have to prove that the testator executed an original Will and that the original is lost but has not intentionally been destroyed.

To assist with proving a Will, it can be helpful to locate witnesses who can attest to the execution of the Will. Evidence may be required from someone (other than a potential beneficiary) who can speak to the contents of the Will.

Disputes Can Arise Over the Validity of a Lost Will

In situations where every person with a financial interest in a Will does not contest its validity, proving the Will is a relatively straightforward process that does not necessarily require a court appearance. Usually, an application is filed with affidavit evidence proving the validity and contents of the lost Will. In O’Reilly (Re), Justice Brown set out the proper form for the order once consent has been obtained from all individuals with a financial interest.

However, more complex court proceedings are required in cases where one or more individuals do not agree with the validity of the Will and therefore disagree with the Will being proven. In Sorkos v. Cowderoy, the Ontario Court of Appeal set out the four-step test that the person applying to the court must prove, which includes:

  1. The due execution of the Will
  2. The particulars tracing the possession of the Will to the date of death and afterwards if the Will was lost after death;
  3. That the testator did not destroy the Will with the intent of revoking it; and
  4. Proof of the contents of the lost Will.

Derfel Estate Law in Toronto Helps Executors Navigate Probate and Estate Administration

Executors are required to fulfill substantial obligations and carry numerous responsibilities. However, fulfilling this process can be particularly difficult from the outset if the deceased’s Will cannot be located, which may increase the potential for estate disputes. At Derfel Estate Law, our estate litigation lawyers assist executors with each step of the estate administration process. Call us at 416-847-3850 or reach out to us online to learn how we can help you minimize the cost and conflict involved in administrating your loved one’s estate.