We have recently looked at the validity of a Will, when the uncertainty of the testator's wishes are apparent. Especially in the instance whereby the testator has more than one Will. – However, the definition of the modern day family has somewhat evolved over the years, allowing for the recognition of diversity and the complex intricacies of families in Ontario today. That said, from a legal perspective, one may not have considered what family structure might mean and the implications in which their family could encounter should they fail to have an appropriate plan in place for the future.
It is for this reason, estate planning, although often deemed to be a daunting process, is fundamental in eliminating confusion and ensuring your last wishes are observed. In any case, it is this document that will determine how your estate will be divided upon your death. – Someone, namely the selected beneficiaries, will be in receipt of any assets you leave behind and of course, if applicable, the care of minors can be determined in this instance also.
While there is no legal obligation to prepare a will, a meticulously drafted Will, will guarantee that your estate and the beneficiaries are protected.
But, what transpires when the original signed Will, is misplaced or destroyed? After all, there should only be one copy of the original Will and if for some unforeseen reason the Will becomes inaccessible, there may be some belief that there were intentions by the testator, to revoke it. Generally, an extensive effort to pinpoint its location will have occurred before the assumption of this conclusion.
Fortunately, when the original signed Will cannot be located but a photocopy is available, the Ontario Rules of Civil Procedure provides some clarification and states the following:
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.
Permitting the beneficiaries to bring forth an application before the court, to prove a lost or destroyed Will. The application must include a photocopy of the Will, with a declaration stating the trustee of the estate has no reason to believe that the testator destroyed the will or performed any other act to revoke the Will.
However, it can only be accepted if all persons, who are believed to possess financial interest in the testator's estate, consent to the proof. – If so, validity and the contents of the Will is considered to be proven, thus a court appearance is unnecessary.
On contrary, it may be that one or more beneficiaries object to the Will being proven, to which in these circumstances a slightly difficult process and a court hearing is anticipated, whereby the opposing beneficiaries are entitled to provide relevant documentary evidence to demonstrate their position. The Judge will then determine the outcome.
Wills and Estates can be somewhat complex, for further advice on ensuring your final wishes are acknowledged or to begin planning for your estate, estate lawyers at Devry Smith Frank LLP will assess your needs and help you determine what is appropriate for you and your family.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
