What happens when a signed, valid copy of a will cannot be located after an individual passes away?
Sometimes a copy of a will can be found, but it it is not signed, and therefore its validity comes into question. Other times, a deceased’s will cannot be located at all. If a will can be traced to the possession of the testator (the person who made the will), but cannot be found upon his or her death, there is a presumption that he or she destroyed the will with the intention of revoking it.
Ontario’s Rules of Civil Procedure
In Ontario, section 75.02 of the Ontario Rules of Civil Procedure sets out the procedure for proof of a lost or destroyed will. It provides as follows:
PROOF OF LOST OR DESTROYED WILL
75.02 The validity and contents of a will that has been lost or destroyed may be proved on an application,
(a) by affidavit evidence without appearance, where all persons who have a financial interest in the estate consent to the proof; or
(b) in the manner provided by the court in an order giving directions made under rule 75.06. O. Reg. 484/94, s. 12.
What if All Parties with a Financial Interest in a Will Consent to its Proof?
It makes sense that in situations where all individuals with a financial interest in a will do not dispute its validity, the procedure by which the will is proven is relatively straight-forward and does not require a court appearance.
In the decision O’Reilly (Re), Justice Brown of the Ontario Superior Court of Justice set out the proper form of the order in applications to prove a lost will under Rule 75.02, where all parties who have a financial interest in the estate consent to the proof of the will:
I declare that the Will of [insert name of deceased] dated [insert date of will] has been proved and that the copy of the Will adduced in evidence shall be admitted to probate as the last Will of [insert name of deceased] deceased, until such time as the original may be found.
I direct that, subject to the filing of the appropriate documents with the Court, a Certificate of Appointment of Estate Trustee with a Will for the Will of [insert name of deceased] dated [insert date of will] be issued to the applicant(s).
What if All Parties with a Financial Interest in a Will Do Not Unanimously Agree to the Will Being Proven?
Sometimes one or more beneficiaries will have differing interests depending on whether a particular will is valid, and he or she may therefore not agree to the will being proven. Not surprisingly, this scenario leads to a more arduous process and a court proceeding will occur.
The legal test for determining whether a lost will can be proven in contested matters is set out in the Ontario Court of Appeal’s decision in Sorkos v. Cowderoy.
In Sorkos, the trial judge admitted a copy of the will of the testator, Victoria (executed in 1997) for probate. Her common law husband of 40 years, Kostas, was the beneficiary under the will. Kostas testified that the will had been properly executed, but the signed copy was lost.
Victoria’s son, Brian, appealed from the lower level decision, claiming that his mother never executed the will; or, alternatively, that she lacked testamentary capacity to execute it. In the further alternative, he argued that the will was procured by undue influence or that the will had been revoked.
In upholding the trial judge’s decision, the Court of Appeal set out the test for proof of a lost will. Victoria’s husband had to demonstrate:
(1) due execution of the Will;
(2) particulars tracing possession of the Will to the date of death, and afterwards if the Will was lost after death;
(3) rebuttal of the presumption that the Will was destroyed by the testator with the intention of revoking it; and
(4) proof of the contents of the lost Will.
Kostas was able to demonstrate the following:
- Victoria executed a will identical to the one presented at trial in the presence of two independent witnesses; this was the same will provided to Victoria by her lawyer in 1997;
- She likely lost her capacity to revoke the will by 1998 (the date the will went missing) due to the progression of her Parkinson’s disease;
- Victoria entrusted Kostas with the will and assumed he kept it for safekeeping (ie. it was not in her possession at the time it went missing); and
- On the date of execution, the will was read to Victoria paragraph by paragraph and the meaning of each explained to her. She asked questions and they were answered to her satisfaction.
Locating Witnesses and the Lawyer Who Drafted the Will
In situations where one is seeking to prove a copy of a lost or unsigned will, it is critical to locate witnesses who can attest to the due execution of the will. Additionally, it is very helpful to have the evidence of someone with specific knowledge of the contents of a will who is not also a beneficiary to help prove the contents of the lost will. The lawyer who drafted the will is most often the best person to provide such evidence.
If you have questions about lost wills or another other family law or estate matter, contact the experienced lawyers at Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.
