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Uh Oh! The Original Will is lost. What Now?

Elderly-Hands

After a loved one passes away, amidst the grieving and sense of loss comes the unenviably task of finalizing your loved one's affairs and administering their estate. Depending on the estate and the people involved - this process will be filled with challenges of varying degrees of difficulty.

The first action to take in this process is to check to see if there is a valid Will. Suppose you know for a fact that a valid Will was prepared but for some reason the "original" Will cannot be located. You may only have a copy of the Will or perhaps the Will has simply gone missing. What do you do?

If possession of the Will can be traced to the testator (the person who made the Will) at the testator's death and the Will cannot be found, there is a rebuttable presumption in the law that the testator destroyed the Will with the intent of revoking it. In order to rebut or challenge this presumption that the Will was intentionally destroyed, a beneficiary can bring an application in court to prove the Will.

In Ontario, Rule 75.02 of the Rules of Civil Procedures provides the process by which a lost Will can be proven. That rule states as follows:

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.

When all persons who have an interest in the estate consent to the Will being proven in court, the process is relatively straightforward. An application and affidavits are filed with the court and the court can declare the Will to be valid based solely on the affidavit evidence. Actual consent, however, 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. 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.

The person making an application pursuant to Rule 75.02 will have the burden of providing the court with sufficient evidence to establish the following: (1) the due execution of the Will; (2) the particulars tracing the possession of the Will; (3) the testator did not destroy the Will with the intent of revoking it; and (4) proof of the contents of the lost Will.

To avoid a costly and unpredictable court procedure, remember to keep track of original estate documents, make copies of important documents, and take note of important names and facts like the name of the lawyer who prepared the Will, the place and date where the Will was signed, and the name of the individuals who witnessed the signing of the Will.

For more information, please contact Pinelopi Makrodimitris at (613) 563-6693 or by email at [email protected] .

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Merovitz Potechin LLP
300-1565 Carling Avenue
Ottawa, ON K1Z 8R1

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