Executors who refuse to show family members the will of the deceased are a common source of frustration.
Often the executor should show the will to family members, even to family members who are not beneficiaries, to clear the air and proactively prevent disputes. However, if the executor refuses to provide it (or, as is often the case, simply does not respond to reasonable requests), the issue is ‘how can you force the executor to disclose the contents of will’?
Two key considerations are:
- Family members and beneficiaries do not have a blanket right to see or receive a copy the will.
- There is no right to a ‘reading of the will’ in Ontario and there is obligation of an executor to conduct a reading of the will for beneficiaries or other families.
Probate
If the executor probates the will, the executor must provide notice (with a copy of the relevant portions of the will) to each beneficiary under the will. Therefore, if a ‘potential beneficiary’ has not received such a notice then either
- the executor has not filed for probate, or,
- the individual is not a beneficiary named in the will.
If the executor has filed for probate, the will is a matter of public record and can be searched at the proper courthouse. This is the Court in Ontario having jurisdiction where the deceased ‘resided’ at the time of their death, and is usually the Court located at the seat of the county or in the GTA the ‘regional district’.
You, or a process server you have hired, can search the court file and take copies including of the will.
No probate
If the executor has not applied for probate, then the solution is to commence Court proceedings. Depending on the circumstances, it may make sense to compel the executor to “apply or renounce the right to apply” as estate trustee, or, it may be better to ask a court to i) appoint an estate trustee during litigation, or, ii) pass over the named executor and appoint someone else as estate trustee.
Choosing between these options depends on a number of factors including the action or inaction of the executor, whether the executor is in a conflict of interest or is in conflict with the estate or other beneficiaries, and whether the estate trustee has demonstrated hostility to the beneficiaries to an extent that it is reasonable to assume that they will not administer the estate properly.
These proceedings should be commenced before the executor receives a Certificate of Appointment as Estate Trustee, and ideally before they apply for one.
Clearly, these proceedings require good legal advice and representation.
In these proceedings, good quality demonstrative (written) evidence is highly preferable. Correspondence from and to the executor is usually very important – letters, emails, and text messages to and from the executor (or their lawyer) are usually crucial.
Note that hostility of the beneficiaries to the executor is NOT a reason for removing or passing over an estate trustee nor a reason to appoint an ETDL. It is hostility of the executor to the beneficiaries that matters.
Excluded? Consider other options before challenging the will
When someone is not included in a will a very common reaction is to think about challenging the will. As discussed here, will challenges are very difficult and expensive, and should only be undertaken after great thought.
If you have not been included in a will, it is important to recall that there is no obligation for a testator to benefit their children, and thus it is not uncommon for estranged children to not be included in a will.
‘Dependent support’ claims are very different from will challenges. They are independent of the contents of the will (and can be used even if there is no will at all) and when appropriate are often a much more direct route for relief than will challenges. They are particularly relevant for common law spouses who have no formal right to ‘inherit’ from the deceased. Learn more here.