When a loved one passes away, the family has the inevitable task of dealing with the deceased’s affairs and administering their estate. The first step in the process is to determine if the deceased left a valid Last Will and Testament. You check the deceased’s home, filing cabinets and desk drawers. You look for evidence of a safety deposit box or a safe. You look for a business card or a letter from the lawyer who drafted the Will. You ask professional advisors and friends if they’ve seen the will or know where it was being kept. Finally, you find a photocopy of the signed Will amongst the deceased’s papers, but despite all of your efforts, you cannot locate the original.
If the deceased took possession of their original Will after it was signed, but it cannot be located, there is a rebuttable presumption at law that the deceased destroyed the Will with the intention of revoking it. As a consequence, the deceased would be deemed to have died intestate (without a valid Will), in which event Ontario law would dictate who’s entitled to share in the deceased’s estate.
In order to rebut the presumption that the deceased intended to revoke the Will, a would be beneficiary or the would be executor must bring an application to the Court to prove the lost Will. If everyone who has a financial interest in the estate consents to the lost Will being proven in Court, then the process is relatively straightforward and can be dealt with without a court appearance.
But what happens if unanimous consent cannot be obtained? What if different people stand to inherit on an intestacy than under the lost Will? In this case, a court proceeding will occur. The applicant will need to prove the lost Will by providing the Court with sufficient evidence of:
The due execution of the Will
Particulars tracing possession of the Will to the date of death, and afterwards, if the will was lost after death
Rebuttal of the presumption that the deceased intended to revoke the Will
Proof of the contents of the lost Will.
Given the presumption of destruction with the intent to revoke, and how difficult it can be to prove a lost Will in Court (especially if there are competing interests), it is imperative that you tell your family and estate trustee(s) where the original Will is being stored and make sure they will be able to access it when the time comes.