When Happens When a Will is Lost or Destroyed?

A will sets out the deceased’s final wishes regarding the distribution of their estate. Wills are required to legally administer the estate and should be kept somewhere safe (typically, in a safety deposit box at a bank, at the client’s lawyer’s office, or, a secure location at home).

If the will cannot be located, every effort should be made to locate the will, such as advertising to lawyers in the province, contacting various friends and family members of the deceased and conducting a thorough search of the deceased’s personal items.

In situations where you have a photocopy of the will but cannot find the original, it is critical to locate witnesses who can attest to the due execution of the will. Typically, the lawyer who drafted the will is most often the best person to provide evidence as to the contents of the will.

If a copy can be located, all persons who have an interest in the estate should consent to the will being proven in court. An application, along with affidavits are filed with the court. Judges can declare a will to be valid based solely on affidavit evidence. It is important to note that actual consent, must be obtained by everyone who has a financial interest in the estate. It is not enough that a person with a financial interest has not objected to the court application itself. If the consent of all persons with a financial interest cannot be obtained, the court has to make an Order giving directions pursuant to Rule 75.06 of the Rules of Civil Procedure.

If no version of the will can be found, in the worst-case scenario, the estate will be divided up intestate in accordance with the Succession Law Reform Act, in the same way as if there had never been a will in the first place. In these cases, friends or family members can make a legal claim according to the standard procedures when no will is present.

The SLRA provides that on intestacy, the first $200,000 of the deceased’s assets are paid to the deceased’s spouse (not common law), if alive. The balance of the assets are then divided between the married spouse and the deceased’s children. If there is no surviving married spouse, then the assets are divided amongst the deceased’s children.

For those in common law relationships, upon an intestacy, a common law spouse will have a right to the proceeds from any assets where the surviving common law spouse is named as a beneficiary under an insurance policy, RRSP or RIF, however, there is no automatic right to otherwise share in the deceased’s estate.

It is important to not only make a will, but to also leave a signed copy of your will with a lawyer or ensure that your executor or family know where your will is kept.