How to find the Original Will

There is no centralized or mandatory registry of Wills in Ontario.

Thus, one of the most important early steps in administering an estate is determining whether the deceased made a Will or not.  This can be a challenge to answer.

If the deceased did make a Will, the next step is to determine what it says.  For this, a copy will suffice.

Later, if probate is required, it will be extremely useful to locate the original Will (the version signed by the testator).

In this post, we discuss the challenges of finding the Will, finding out what it says, and locating the original.

What did the deceased say?

The first place to start when trying to determine whether the deceased made a Will is what they told friends and family.  Fortunately, many testators do not make a secret of the fact that they have made a Will and happily tell their loved ones what it says and where the original is located.  This is how it should be, and is extremely helpful.  Best practice is that a testator should provide a copy of their Will to their attorney for property, and, should tell that person where the original is located.

Ideally, the testator can and will tell more people than just he POA what the Will says and where it is .  This avoids concerns about the well being or behaviour of the attorney.

If the testator told people about the Will then it should be a fairly simple matter to follow these instructions to locate the original Will.

Unfortunately for some families, the testator is not nearly so forthcoming, which means that estate administration starts with a very challenging scavenger hunt .

Likely hiding spots

If you are unsure whether the deceased made a Will or not, you will have to conduct a thorough and wide search in the most likely hiding spots.  These include:

• Safety Deposit Boxes: If the deceased rented a safety deposit box, this is a good place to start.  Of course, you have to know where it is.  Start with the bank branch that the decased used more often.  The branch should be able to identify whether the deceased rented a safety deposit box anywhere at that Bank.  Gaining access to a safety deposit box without a copy of the Will can be challenging.  Most banks only let the named executor access the safety deposit box, which presents a catch-22 if you do not know what the Will says and believe it may be in the box (if you have a copy of the Will this problem is avoided).  Normally, the bank will allow an inventory of the box to be done, without removing any contents.  This would usually answer whether there is a Will and who the named executor is.
• Courthouse Records: Ontario does have a system for depositing the original Will with the Court.  This is not widely used, but is a good system.  It should be deposited at the Court that governs the place where the deceased resides.  The Court will answer whether the testator has deposited an original Will, but will only allow the named executor to retrieve it.  
• Online Registries: The web offers a fresh frontier for will registration. Note that most online registries do not store a copy of the Will itself, just a record of the testator making a Will.  A challenge is that there is no centralized Will registry – the number of possible registries is expanding rapidly, so you will have to locate and search all of the most likely registries that the deceased might have used.  A word of realism however – if the deceased was not a digital first netizen, it is unlikely that they used an online registry.
• Home Hideaways: Some folks squirrel away crucial documents, including wills, in home safes or vaults. Conduct a thorough sweep of the testator’s home.  Increasingly,  in Ontario handwritten Wills, unsiged but final Wills, the like may be admited to probate, so a thorough search of the deceased’s computer and email inbox is warranted.

Lawyers

It is very useful to ask local lawyers if they drafted a Will for the deceased.  If they did, they should be willing to answer that question and identify who the named executor is, but most likely will only provide a copy of the Will to the named executor.

Start by asking lawyers who the testator is likely to have hired – for instance, lawyers who are close, or well known in the area, or who have previously assisted the deceased with other matters like house purchases or powers of attorney.

If that does not succeed, usually there is an organized channel for advertising the Will search to the local bar association.

Document the search

It is extremely helpful to document your search for the Will.  Keep good records of where you looked and who you asked, when.  This will prove very useful if you are unsuccessful in finding a Will, or if you find a copy but not the original Will.  

When the search is comes up empty

Ultimately, if after all reasonable efforts to locate a Will you have been unsuccessful, then the reasonable assumption is that the deceased died intestate (without a Will), and all of the rules of intestate succession including who inherits what and how to apply for probate will apply. 

If you find a copy but not the original Will

Sometimes you can find a copy of the final signed Will but not the original.  This is presents a challenge, but not an insurmountable one.  In this case, it is very important to document where the copy was found, and the last known whereabouts of the original.  Experienced counsel can often successfully probate a copy of the Will – this requires skill and care and is definitely more difficult and expensive than probating the original Will, but we have done this a number of times.

Conclusion

The hunt for the original will is a critical chapter in the saga of managing an estate.   Estate administration is a challenge at the best of times, and we understand how frustrating and stressful it can be when you cannot locate a copy of a Will.  

We are here to help.

Miltons Estate Law – Ontario Probate and Estate Law