A primary consideration in the estate planning process should be the safe keeping of original planning documents (such as a will or a power of attorney).
In Ontario, in order to obtain a grant of probate, the named estate trustee typically needs to provide the court with the original will, pursuant to the Estates Act. In handling estate administration matters, the original of both the will and the power of attorney are very important in confirming one’s authority to administer the property of an incapable or deceased person.
While it is possible, in certain circumstances, to probate a copy of a will, the availability of the original facilitates obtaining probate without complications. An original copy of the document is typically required as it provides the court a guarantee that the testator did not destroy his or her will. Pursuant to the case of Re Perry (1924), [1925] 1 DLR 930 (Ont CA), when a testator has possession of his or her original will and it cannot be found at the time of his or her death, the presumption is that the will was destroyed with the intention that it be revoked.
While this presumption will vary in each case based on the character of the testator and such factors as the nature of the relationship to the beneficiaries, the contents of the instrument, and the possibility that the will may have been lost, rather than destroyed, this presumption exists and makes the step of searching for and locating the original will especially important.
Due to the preference of the court that the original copies of testamentary documents are filed, the safe keeping of wills is an important consideration in estate planning. The safest place to keep your testamentary document is somewhere like a safety deposit box located in a bank, with a law firm in a fireproof safe, or stored with the court. Proper will storage can function to create a seamless process for the executor when applying for probate.
While it is best to have the original copy of a will, it is possible that the original of a document will not be located. It may not be a fatal blow to the estate plan if a testator’s original document is unavailable. If you cannot find the original will and are sure it exists, it is possible to go to the court and try to prove a lost will. The procedure for proving a lost will is outlined within Rule 75.02 of the Rules of Civil Procedure, which provides as follows:
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.
Rule 75.06 states that “any person who appears to have a financial interest in an estate may apply for directions…as to the procedure for bringing any matter before the court.” Accordingly, by providing affidavit evidence or going under Rule 75.06 of the Rules of Civil Procedure, it is possible for a beneficiary or executor to succeed in a lost will application and avoid the need for the original copy. The Application for a lost will is expensive and time consuming, but it is a means by which an individual can attempt to recreate a testamentary document for a deceased individual when the original is missing but believed not to have been revoked.
Furthermore, if it is believed that someone has the original testamentary document that is required, and they are not co-operating with requests for its production, there is also a mechanism to compel production of the document. Pursuant to section 9 of the Estates Act, in conjunction with Rule 74.15 of the Rules of Civil Procedure, “… the Superior Court of Justice may, on motion or otherwise in a summary way, order any person to produce and bring before the registrar, or otherwise as the court may direct, any paper or writing being or purporting to be testamentary that is shown to be in the possession or under the control of such person.”
In conclusion, it is very important to have a safe place to keep your original testamentary documents. If for some reason, the document cannot be located after your death, it is possible to apply to the courts to have the issue resolved and the wishes of your original testamentary document upheld. However, due to the additional expense, delay, and uncertain result of a Lost Will Application, it is best to ensure that all original testamentary documents are carefully stored and accessible to the named executor(s) upon death.
Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.
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