When engaging in the estate planning process, it is likely that you will receive advice from a lawyer to keep your Last Will & Testament in a safe place that can be easily accessed by your Executor when the time comes for them to use it. This advice is crucial, as the Saskatchewan Court of King's Bench requires that your originally executed Will be submitted in order to grant Letters Probate and permit your Executor to complete the task you have assigned to them; namely, distributing your assets and possessions in accordance with your wishes.
But what happens if a Will has been lost or destroyed?
According to Section 16-21 of the Saskatchewan King's Bench Rules, an Executor may apply for a grant of a Will that has been lost or destroyed if they can provide proof to the Court of that loss or destruction.
Sorkos v Cowderoy,1a case from the Ontario Court of Appeal, highlights a four-part test to prove a lost or destroyed Will in order to proceed with Letters Probate. In it, an applicant must demonstrate:
- Due execution of the Will;
- Particulars tracing possession of the Will to the date of death;
- Rebuttal of the presumption that the Will had been destroyed by the testator with an intention of revoking it; and
- Proof of the contents of the lost Will.
Due Execution of the Will:
A signed Affidavit of Execution of Will, typically completed at the time of executing the Will itself, is a crucial piece in authenticating that a Will has been validly created in accordance with legislative requirements. To prove due execution of a Will, the Executor will need to produce a living witness or witnesses that had originally signed the Will with the testator.
Particulars of Possession / Rebuttal of Presumption of Destruction:
If a Will's last known location was with the testator before their passing and has subsequently been lost at death, a presumption arises that the testator had destroyed the Will with the intention of revoking its contents.2 Should the Will have been given to another party, like the Executor or the law firm that prepared the Will, or if the Will had been lost after the testator has passed, the Will's last known location could assist in demonstrating the testator's intent to preserve its validity.
When providing a Will to a third party such as a law firm, or directly to the Executor or another trusted party to the testator, a reasonable person could infer that this had been done in order to keep the Will in a safe location that can be easily produced when required. If a testator may be concerned about a pending loss of mental capacity, transferring the Will to a safe location for its preservation would counter the presumption that it was meant to be revoked.
Proof of Contents:
Lastly, to prove the contents of a lost Will, an unsigned copy would be required to authenticate those contents. An Executor should look to the lawyer who prepared the Will, as their file may contain notes during the drafting process that could help clarify the testator's wishes at the time of execution. If necessary, oral testimony from the drafting lawyer can further provide support to the testator's intent.
Are you concerned about a lost Will? Procido LLP's Wills and Estates Practice Group enlists a team of professionals who can assist in overcoming these hurdles to get the estate process back on track. Our Wills and Estates Practice Group also specializes in estate planning and estate administration, with a fireproof safe in office to store your Original Will and provide greater peace of mind. Contact our Wills and Estates Practice Group to learn more about how we can assist you with your estate planning and estate administration needs.
Footnotes
1. 2006 CanLII 31722 (ON CA).
2. Bennett Estate (Re), 2023 BCSC 559.
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.
