Commercial Litigation and Dispute Resolution Blog

Despite the advice of professionals to the contrary, families often fail to discuss estate matters with each other.  Parents may not even say they have a will, let alone discuss its contents or location.  This may leave the surviving family trying to figure out the affairs of their deceased parent without knowing where to start.  The most important information is probably in the will.  It sets out what the estate likely consists of and who is to get what.  Frequently, locating the original will can be a problem.  It is needed to obtain probate.  What happens if you can’t find it? Can you probate a copy? 

The short answer is yes, you may be able to probate a copy of the will but it depends who had it last and what circumstances led to its loss or disappearance.  If the deceased had possession of the will last and it cannot be found, then the law will presume he or she intended to revoke it by intentionally destroying it.  This is a rebuttable presumption but the consequence of it is that, in the eyes of the law, there is no will.  In that case, the deceased will be considered to have died “intestate”.  In those circumstances, the distribution of their estate is governed by Part 10 of the Estate Administration Act (In March 2014, this and other related statues will be replaced by the Wills, Estates and Succession Act.).  That legislation provides a cascading distribution among the family members depending on the particular circumstances of each case.  For example, a surviving spouse receives the first $65,000.  After that, the estate is split between the spouse and any children in amounts that depend on the number of children. 

To rebut the presumption of revocation for a lost will, you must prove that it was actually lost rather than destroyed.  The evidence required must, in the words of the case law, establish “on a balance of probabilities that the will was inadvertently lost or misplaced.”  The burden of proof rests with the person seeking to establish it was not intentionally destroyed.  If someone other than the deceased had the will last, the law does not presume it to have been revoked.   But if the will was in the deceased’s possession and can’t be found, then the types of evidence that may discharge the presumption include whether:

• the deceased made statements that confirm or contradict the terms of the will;

• the deceased had good relationship with the beneficiaries of the will;

• there was an event that led to the destruction or loss of other things belonging to the deceased (i.e., a fire, flood or burglary);

• there were any dispositions of property by the deceased that either support or contradict the terms of the will;

• the character of the deceased in the conduct of his or her affairs, such as keeping important documents in a safe place; or

• the terms of the will are reasonable in light of the deceased’s circumstances and family.

If you can’t find an original will but have a copy, then you will need to carry out a careful investigation and place the resulting evidence before the court in order to avoid an intestacy.  You will need to find out who drafted and witnessed the will.  You will need to speak to friends and family members.  You will likely need to speak to medical professionals and others to determine the mental state of the will maker.  You may even need to determine from bank records whether your parent’s safety deposit box was accessed in a manner consistent with removing the original will.  

One way for a testator to avoid this trouble is provided for in the Wills Act.  That statute allows a will maker to file a “wills notice” with the Vital Statistics Agency.  That notice sets out the date of the will and where the original is located.  This allows others, after the will maker’s death, to locate the original will quickly and easily.