An unfortunate but not uncommon situation can arise where someone executed a will, but it cannot be found following their death. Wills are unique in the requirement for the original signed document, arising from the principle that it is a fundamental right to direct accumulated assets after death. Just as we have the right to create a will, we have the right to revoke it, and the accepted method of revoking a will is to destroy it. Unfortunately, it’s hard to differentiate an accidental loss from an intentional destruction after the death of the testator.
If no will can be found, the estate will be distributed in accordance with Part II of the Succession Law Reform Act unless the heirs-at-law (next of kin) agree otherwise. If the original will is lost but a copy can be found, the Rules of Civil Procedure (the “Rules”) allow for the estate trustee (or any person with an interest in the estate) to apply to the courts for an order that the copy of the will is the valid last will of the deceased. In either case, a lost will causes unnecessary stress, cost to the estate, and uncertainty following the death of a loved one.
The Rules direct that the will may be proved either by:
1) affidavit evidence only if everyone who has a financial interest in the estate agrees that the copy of the will should be probated or
2) in a manner provided by the court in an order giving direction made under rule 75.06. Everyone who may have an interest in the estate (either by way of intestacy or under a prior will) should be served with the application. Consideration should also be given to whether any party needs a litigation guardian or if the Public Guardian and Trustee should be served on behalf of a charitable interest.
In the case where all interested parties do not consent in advance, the person wishing to have the copy of the will declared valid needs to prove:
that the will was properly executed;
particulars tracing possession of the will to the date of death, and after if the will was lost after death;
rebuttal of the presumption that the will was destroyed by the testator with the intention of revoking it; and,
proof of the contents of the lost will.,
Items 1 and 4 above are often not difficult to prove, while items 2 and 3 are often more challenging. Proving that the testator did not destroy the will may in particular be difficult to prove. In the case of Levitz v Hillel Lodge Long Term Care Foundation, Justice Bell set-out the following considerations relating to proving that the original will was not destroyed by the testator with the intention of revoking it:
Whether the terms of the will are reasonable
The nature of the relationship between the testator and the beneficiary
Whether the testator’s personal effects were destroyed prior to the search for the original will
The testator’s nature and character in taking care of his/her personal effects
Whether there were any dispositions of property during the testator’s lifetime which confirm or contradict the terms of the will
Statements made by the testator which confirm or contradict the terms of the distribution set out in the will
Whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store documents
Whether there is any evidence that the testator understood the consequences of not having a will and the effects of an intestacy
Whether the testator made any statements suggestion that he or she had a will
Preventing Will Loss:
It is important that a testator have a plan for where and by whom their original will is to be stored once executed. The issue should be raised early in the will drafting process, and the storage plan should ensure that the document will be safe and secure for what may be many years until its needed. It’s also important to ensure that the will can be easily found by the estate trustee after the testator’s death.
For many clients, self-storage is not advisable. Lawyers historically provided will storage for clients. Providing will storage incurs significant costs and liability to the firm and requires a robust succession plan for clients who outlive the practice.
Conclusion
Proving the validity of a copy of a will is often an expensive and time-consuming process that can be avoided by having a plan for storage of the original will. The process for proving the will can create uncertainty for the beneficiaries and opens the door for conflict among family members of the deceased. This is especially so where someone is likely to be disappointed by the contents of the will and may wish to have a prior will entered for probate. Having a plan in place for storage of the original will is an integral element of the will drafting process. A dedicated will storage company like Custodius allows a firm to upgrade its will storage offering while reducing cost and liability.
