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What if a Will is Lost?

2 minute read

A Testator had a signed Will that they kept in their safety deposit box. After the Testator died, the signed Will could not be located in the safety deposit box, or at all. An unsigned copy of the Will was found amongst the Testator’s papers. What now?

To start, the Succession Law Reform Act provides that a Will can be revoked by several methods, including by destroying it. A Will may also be revoked by the making a new Will. When a Testator’s Will is prepared and executed, as a general rule it causes all prior wills to be revoked.

In this hypothetical situation, if the last Will can be traced to have been in the Testator’s possession up to the date of death, but after death it cannot be located, then there will be a presumption that the Will cannot be located because the Testator destroyed it with the intention of revoking it. If that presumption is not overturned, then the Estate will pass on an intestacy (an estate without any will) as the deemed revocation of the last Will does not revive a prior will.

The presumption that the Will was destroyed with the intention to revoke it can be rebutted if there is evidence to satisfy the court that, despite not being able to locate the original Will, the Testator did not intend to revoke it. The onus rests on the party that wants the “lost will” to be upheld to satisfy the court on a balance of probabilities that it was lost without the intention of destroying it. For example, that party may have evidence that the Will was destroyed by a fire or that the Testator told someone about the Will or its terms shortly before their death in a manner which indicated the Testator still intended the Will to govern his or her estate.

There is a risk that the Testator’s wishes will be ignored if the Will assumed destroyed intentionally, unless the Will can be located after the Testator’s death. To reduce the risk that a will is accidentally lost and presumed to be intentionally destroyed, Wills should be kept in a secure location that is known to others such as a safety deposit box or lawyer’s file.

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David G. Waites

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