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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. As discussed below, the rules for probate without a will are much more onerous to comply with.

 

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

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 locate wills are:

  • A careful review of the deceased’s papers;
  • Review of safety deposit boxes;
  • Direct contact to lawyers that the deceased might have engaged;
  • Advertising to local lawyers, usually via the local bar association;
  • Consulting new online will registry services such as ?

 

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.

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