May 22, 2019

Lost Will?

ALL IS NOT LOST WHEN AN ORIGINAL WILL IS LOST

Executors and the beneficiaries of an estate may panic when they discover the deceased’s original Will has been lost or destroyed or they just cannot find it. The courts may allow a copy of a Will to be probated in the place of the original Will in the right circumstances.

You must be able to show:

– The Will was properly signed:

o If the Will was handwritten (a Holograph Will) you must prove the handwriting and the signature are those of the deceased
o If the Will was typewritten that it was signed by the deceased and properly witnessed (2 witnesses present at signing). A beneficiary (or their spouse) should not be a witness;

– What the Will means. That is usually obvious, but with a Holograph Will, it might not be;

– There was no intention to revoke the Will. When an Original Will held by the deceased cannot be found, there is a legal ‘presumption’ the deceased intended to revoke the Will. There, you must be able to show the original Will is not missing because it was revoked and therefore torn up, burned, thrown away, etc.

Missing Will scenarios come in all varieties. Here are some (assume the original Will cannot be located for each of these, and assume you can rebut the presumption of revocation):

– You have a copy of the original Will that was prepared by a lawyer and was properly signed with witnesses. Ideally the Will drafting lawyer (and/or their staff) will provide an affidavit saying the copy is the same as the original (except for any extraneous things that may be written on the copy, like “COPY”):

– You have a copy of a Will that does not have any signatures, but was prepared by a lawyer. Although less straightforward to have accepted by the courts, if the lawyer can recall (and/or has notes) and can confirm preparing the Will and having it properly signed and witnessed, you have a better chance of the copy of the Will being accepted by the courts.

– You have no copy of anything, and there may or may not be lawyer’s notes regarding its contents, but there is certainty that a Will was signed. This will be much more difficult, but if the Court can be satisfied on what was in the original Will, you may succeed. You will need good evidence to succeed – conversations, anything that the deceased may have written about their intentions (journal or diary entries, letters to family, friends, advisors).

 In a case handled by our office, the Will was drafted by a lawyer and retained for safekeeping by the lawyer.  This is common practice in Ontario.  The Testator later picked up the Original Will from the lawyer.  The Will could not be found at the date of death.  Investigation suggested that the Testator was considering a change in Executor when the Will was picked up, but did not proceed with the change of Executor.  Evidence regarding the Testator’s record-keeping system was consistent with the Will having been inadvertently destroyed or discarded.  The Court considered that the Presumption of Revocation did not apply and allowed a copy of the Will to be submitted for probate.

Although it is preferable that a lawyer hold onto the original Will as they can provide safe storage and ready access when needed, sometimes, an individual prefers to have their original Will in their own hands. When an individual keeps the original Will rather than leave it with their lawyer it behooves all to do the following –

– For lawyers before releasing the original Will, make a copy of the Will and store it in your database system with all notes pertaining to the creation of the Will, and notations regarding when, and ideally why, a client has taken possession of the original Will. If they are taking the Will after you have stored it for awhile, ask if they are intending to revoke it;

– For the non-lawyer holder of the original Will, store it in safe keeping – that would be a locked cabinet that is fire, water, and tamper proof. Ensure that one trusted confidante knows where the original Will is, and how to access it. If it is in a safety deposit box, ensure someone else can access the box on death, as the bank may not allow access. If they do, they may not let you take the Original (really!);

– Ideally also make a copy of your original Will and store it offsite in another secure system. Offsite locations can be both a physical space such as a safety deposit box and also in a cloud based data storage system such as DropBox, Google Docs, OneNote etc.

If you find yourself as either an estate trustee or a beneficiary in the unenviable position of knowing there was an original Will, and not finding it, before you give up all hope, consult with a lawyer that has specialized knowledge in the area of estate administration. They can guide you through having a copy of a Will probated by the courts.

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Feel free to contact us at any point for assistance or advice with respect to Estate Law, Estate Planning or Estate Administration or Estate Litigation. We may be reached at 705-435-4339 / 1-877-85LEGAL (1-877-855-3425) or contact us via email.