A person can only have one original will. In order for a will to be probated in Ontario, the original will must be filed with the Court. A copy of the original will, or even a notarial copy, cannot be used in its place without a court order. So, what happens when the original will has been lost or misplaced?
A lost will is presumed by law to have been revoked by the testator (will maker). This presumption can be rebutted, however, by making an application under the Rules of Civil Procedure to prove a copy of a will where the original will cannot be found.
The party wishing to prove the lost will must establish the following in order to rebut the presumption of revocation and have a copy of the will stand in the place of the original will:
- due execution of the will;
- trace possession of the will to the testator's date of death (and subsequently, if the will was lost after death);
- rebut the presumption that the testator destroyed the will with the intention of revoking it; and
- prove the contents of the lost will (for example, with a photocopy of the will).
The party must prove on a balance of probabilities that the will was not destroyed and that there was no intention by the testator to revoke it. The Court will look at various factors when considering the evidence, including, for example, when the original will was last seen and whether the testator made statements to the effect that they had a will.
These types of applications may also be necessary where an original will is stored for safekeeping with a foreign court or other public officers and cannot be released. In many civil law countries, wills are filed with notaries. This helps facilitate an efficient estate administration in the local jurisdiction but causes hurdles in foreign jurisdictions where the original will is required as part of the probate process, such as Ontario.
In France, for example, an individual's original will is typically submitted to a French notary following the death of a person resident in France and the notary will take the necessary steps to authenticate the will submitted to them. Once satisfied that the will is authentic, the notary will issue certain documents to the heirs, which they can use to administer the testator's estate. The notary will retain the original will and will not release it to the heirs or any other individual pursuant to the French notarial rules.
Unfortunately, if any assets need to be administered in Ontario, the documents issued by the notary to the heirs are not considered a local grant for Ontario purposes and can't be used to apply for an ancillary probate grant in Ontario.
The application to prove a copy of a will as the original last will, referred to as an Application for Proof in Solemn Form, is a preliminary and separate Court application that must be completed before proceeding with the probate application. This pushes back the timing for receiving a probate grant and beginning to administer the estate assets and also adds to the costs of administering the estate.
Proving a lost will is onerous, delays the probate process, and can cause significant costs for the parties involved as well as the estate.
It is important to ensure your will (and other estate planning documents) are stored safely. Even if you are mainly digital – that electronic copy you have saved on your computer is not sufficient. Let your estate trustee(s) know where your original will is stored.
Check out our earlier blog, Where to Store Your Signed Original Will and Powers of Attorneys?
You may also want to consider separate situs will planning if your original will may be needed in multiple jurisdictions.
Check out our advisory, Separate Situs Will Planning.
For any estate trustee reading this, search everywhere to find the original will. There is a process in Ontario to search for lawyers who may be holding the original. Check all of the testator's belongings – leave no stone unturned. And we mean every nook and cranny – one client found an original will in the testator's gym bag. Don't ask us how it got there!
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.