Publication

Finding the Solution When the Original Will is Lost

Published:

April 13, 2023

Author(s):

• Eric Lecompte
• Mélanie J. Caissie

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A Will is a key ingredient of any estate plan – and one of the most important documents a person ever signs. It allows a person to control how their estate will be distributed after their death and determines who has the authority to conduct business on the estate’s behalf. The inability to find a loved one’s Will following their death can make an already difficult time even more difficult. When Wills get lost, it can cause delays, increased cost, stress and family strife. You could be compelled to distribute their estate in accordance with provincial law as if no Will existed. Most institutions that interact with an estate eventually need to see the deceased’s Will; financial institutions, for example, typically refuse to release a deceased’s funds without proof that the individual seeking to withdraw the funds has the authority to act as a representative of the estate, usually in the form of the probated Will.

But all is not lost – even if the original Will is. Following these four steps will help your efforts to apply for probate without an original Will. You can even gather much of the evidence required for this process before death so the intended executors and beneficiaries are prepared. Conversations about estate planning with loved ones can be beneficial and help ensure the deceased’s intentions and wishes are respected.

1. Confirm a Valid Will Exists

The first step is to prove that a properly executed Will does exist. Courts accept the testimony of anyone who would have witnessed the execution of the Will by the deceased (called the Testator). For example, the lawyer who drafted the Will, the witnesses who signed the Will, or someone who was in the room when the deceased signed it.

If you can’t prove that a properly executed Will exists, a court must decide whether the Will ever existed, and if it did, whether it continues to embody the deceased’s final wishes. Courts have considered evidence such as a lawyer’s draft notes, written evidence that a Will was (or was to be) drafted, and even oral testimony. If you can’t locate a deceased’s original Will, gather as much information as possible to support a request for probate, such as:

• A copy of the Will.
• The name and contact information of the lawyer who prepared the Will.
• The name(s) and contact information of the witness(es) to the Will.
• When and where the Will was last seen.
• Any conversations with the deceased about their Will.

2. Trace the Possession of the Lost Will

The second step is to prove the deceased didn’t revoke the Will before their death. Whenever an original Will isn’t found, there’s a “presumption of revocation”: a presumption that the deceased destroyed it – and therefore intended to revoke it. Tracing the possession of the Will goes a long way to rebutting the presumption of revocation. It’s important to show evidence that you conducted a thorough search for the original Will. The information found during that search can help establish a timeline for the Will and could help rebut the presumption that the deceased revoked it if necessary.

Where there’s evidence proving that the original Will was never in the deceased’s possession, the presumption of revocation doesn’t apply and you can move to step four. For example, in the Nova Scotia Court of Appeal’s 2000 decision in Brimicombe and Fogarty v. Brimicombe, the Court of Appeal noted that the strength of the presumption of revocation is measured by the “character of the custody which the [deceased] had over the will.” In that case, it was well known the deceased kept her Will in an envelope under her bed. After death, a thorough search was conducted, but the only Will found was a copy of her Will (not the original), which was under her bed in a sealed envelope. The court found that the evidence suggested that the deceased never actually possessed the original Will and that she only ever had a copy. As such, the presumption of revocation did not apply and the copy of the Will was admitted into probate.

However, if you can’t prove that the deceased never had the original Will in their possession, the presumption of revocation applies – and you must present evidence to rebut it.

3. Rebut the Presumption of Revocation

Because a Will only takes effect after death, a person can revoke their Will until the day they die (assuming their capacity isn’t an issue). If you have traced possession of the original Will to the deceased or you can’t prove they never had it, but you can’t locate the original Will, the legal presumption is that the deceased destroyed their Will with the purpose of revoking it.

It is possible to rebut the presumption of revocation – but courts require very clear and convincing evidence to do so. Evidence that could rebut the presumption of revocation includes evidence that the original Will was seen after the deceased’s death, that the deceased deposited it in a safety deposit box, gave it to someone for safekeeping, or that it was in someone’s else’s possession after the deceased’s death.  For example, in the New Brunswick Probate Court’s 1985 decision in Re Quinlan’s Will, there was evidence of a break-in and theft at the deceased’s home before his death. The Court further found there was no evidence of the deceased’s intention to revoke his Will. The evidence additionally showed that the contents of the copy of the Will still accurately reflected the deceased’s intentions up to the date of his death. The Court therefore concluded the probate applicant rebutted the presumption of revocation.

To admit a copy of a lost Will (or some other evidence that could prove the deceased’s intention, such as diary pages, emails or signed notes found in their home) for probate, it’s important to compile any information that could help rebut the presumption of revocation in case it becomes necessary to do so. This information might not be easy to gather, especially after the deceased’s death. Potentially relevant information includes:

• The nature of the deceased’s character (for example, choices the deceased might have made respecting the storage and safe-keeping of their Will).
• The deceased’s capacity at any relevant times.
• Information about where the deceased kept their Will.
• The deceased’s relationship with their potential beneficiaries.
• Any explanation for the loss of the original Will, other than destruction.

4. Prove the Contents of the Lost Will

 If the presumption of revocation doesn’t apply or is rebutted, the last step is to prove the contents of the lost Will with evidence proving the contents are in fact the deceased’s final wishes, allowing a court to grant probate on the contents of the lost Will. Much of the evidence gathered in the previous steps will be helpful at this stage.

A copy of a properly executed Will is usually sufficient to establish the original Will’s contents at this stage. That said, to avoid future attacks on the validity of the Will most courts require the probate applicant to admit the copy of the Will in “solemn form”. This requires the applicant to prove in open court, with notice to all those involved in the estate, that the deceased:

• Properly executed the Will.
• Had testamentary capacity at all relevant times.
• Had knowledge and approved the contents of the Will.

When a copy of the Will isn’t available or sufficient, courts have accepted the testimonies of those who saw or heard the contents of the Will, or otherwise heard the deceased’s intentions, to prove the contents of the Will. For example, in the 2005 decision in Furlotte v. McAllister, the New Brunswick Court of Queen’s Bench accepted the testimonies of those who had seen the deceased’s handwritten (holograph) Will and those who heard her intentions in the past. One of the deceased’s children wrote her recollection of the contents of the handwritten Will she had previously seen. This recollection was submitted and the Court admitted it to probate.

Please contact your McInnes Cooper lawyer or any member of our Estates & Trusts Team @ McInnes Cooper to discuss drafting your Will, how to avoid losing your Will, or advice and guidance on how to deal with a lost Will.

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