Finding the last will of the deceased

This page is not about ‘when the executor will not show family the will’.  That issue is addressed here.

Whether or not the deceased made a will makes a profound difference for two quite different issues:

• Who will inherit what?
• Do the rules for intestacy or with a will apply to the probate process?

Unfortunately, may folks do not leave clear instructions about whether they made a will and if they did, where it is.

As a result, family members are often left wondering ‘if there is a will’ and ‘if so, where so’?

There is no simple way to locate a will in Ontario. For instance, unlike in Quebec, there is no centralized registry of wills.

The common ways to try to locate wills are:

• A careful review of the deceased’s papers and filing cabinets;
• Review of safety deposit boxes of the deceased;
• Direct contact to lawyers that the deceased might have engaged;
• Advertising to local lawyers, usually via the local bar association;
• Advertising in local newspapers (not very common);
• Consulting new online will registry services such as NoticeConnect.com
• Inquiries with the Estates Registry at the courthouse local to where the deceased resided, to confirm whether the deceased filed a will with the Court.

Ultimately, however, if your searches are unsuccessful you will not be able to prove that ‘there was no will’, only that you have made all reasonable efforts to locate one and been unsuccessful.  Therefore, it is important to keep good records of the efforts you make to locate a will, so that if necessary you can provide evidence of these efforts.

If you are unable to locate a will, you will have to proceed on the basis that there was no will and the deceased died intestate.  If you locate an original of an earlier will, the issue will be whether this will has been revoked (or perhaps revived).  If so, it can be probated.  Otherwise, there will be an intestacy.

What if you have copy or draft but not the original will?

Sometimes, you have a copy or draft of the testator’s will but not the original.  If so, it may be possible to probate this copy but the probate will not be routine and will require additional care and cost.

When a copy is available and the original is not, the onus is on the applicant to prove that the testator:

1. signed the original and
2. did not intentionally destroy the original.

A will can be revoked by being destroyed by the testator.

Therefore, if the testator had the original and it can no longer be located, the law starts with a rebuttable presumption that it was intentionally destroyed, and thus revoked, by the testator.

Rebutting the presumption of revocation by destruction requires proof on a balance of probabilities that the testator did not intend to revoke the will.

As a result, for example, if the original was lost ‘at the lawyer’s office’ a strong argument can be made that the testator did not revoke it by destruction; conversely, if the testator had the original and was known to be making changes to it, then it will be difficult to rebut the presumption of revocation.

Ultimately, if the presumption of revocation cannot be rebutted, you will have to probate either an earlier will (if an original exists and it has not been revoked) or on the basis that there is no will.

Have copy or draft but not the original will

Sometimes, a copy or draft of the testators will  can be found but not the original.  If so, it may be possible to probate this copy but the probate will not be routine and will require additional care and cost.

When a copy is available and the original is not, the onus be on the applicant to prove that the testator signed the original, and the original has been lost and not destroyed. If the original was lost ‘at the lawyer’s office’ a strong argument can be made that the testator did not revoke it by destruction; conversely, if the testator had the original and was making changes to it, then   the presumption of revocation must be rebutted.