Photocopies of wills: What happens when you cannot locate the original

The general rule for probating a will is that you must submit the original will to the court. You simply cannot send a photocopy of the will to the court as if it were an original. There is a presumption in estates law that if the original will cannot be located, it is because the testator intentionally destroyed his or her will. While probating a copy of a will is not necessarily impossible, it is not a simple procedure.

Generally, there are two options when the original will cannot be located and you are left with a photocopy. To try and overcome the presumption about the intentional destruction of the will, the estate trustee and/or beneficiaries will have to submit an application to the court to “prove” that the copy you have in your position is in fact a valid copy of the will. This could be proven through the use of affidavit evidence about conversations the deceased may have had with the family about their testamentary intentions, or correspondence about the will with the deceased’s lawyers as well as any corresponding notes to file the lawyer has in their possession.

The second option is to apply to the court to appoint an administrator. If there is no original will, there can be no executor. Instead, the court can appoint an administrator who will carry out the terms of the will. Rather than proceeding as if there were no will and treat the estate as intestate, it is possible a judge may consider an application to appoint an Administrator with the will annexed.

It is important to note that in situations where there is more than one individual with a financial interest in the estate and there is conflict over the contents of the will, the process can be even more difficult. The estate trustee or beneficiaries will be required to commence court proceedings in order to obtain the advice and direction of the court with respect to any contested issues and leave it for a judge to decide how to proceed with the administration of the estate.

It is important to ensure that the original copy of your will is left in a safe place and that your estate trustee and/or beneficiaries know where it can be located on your passing. Doing so will reduce any difficulties administering your estate.