We have recently looked at the validity of a will when the uncertainty of the testator’s wishes is apparent. Especially in instances where the testator has more than one original will. However, the definition of the modern-day family has evolved, allowing for the recognition of diversity and the complexities of estate planning in Ontario today. From a legal perspective, it is crucial to consider what family structure might mean and the implications that may arise without an appropriate plan in place for the future.
The Importance of Estate Planning
Estate planning is fundamental in eliminating confusion and ensuring your last wishes are observed. While there is no legal obligation to prepare a will, a carefully drafted document guarantees that your estate and beneficiaries are protected. This document determines how your estate will be divided upon your death, ensuring that the intended recipients receive their share. Additionally, if applicable, the care of minors can be outlined in this process.
What Happens If the Original Will Is Lost?
But what happens when the original copy of a will is lost or destroyed? After all, there should typically be one original will, and if it becomes inaccessible, it could be presumed that the testator intended to revoke it. However, a thorough effort to locate the document should be made before reaching this conclusion.
If a lost original will but have copy situation arises, the Ontario Rules of Civil Procedure provide guidance
75.02 – Proof of a Lost or Destroyed Will
The validity and contents of a lost original will may be proved through 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.
Permitting the beneficiaries to bring forth an application before the court, to prove a lost or destroyed Will. The application must include a photocopy of the Will, with a declaration stating the trustee of the estate has no reason to believe that the testator destroyed the will or performed any other act to revoke the Will.
However, it can only be accepted if all persons, who are believed to possess a financial interest in the testator’s estate, consent to the proof. – If so, validity and the contents of the Will is considered to be proven, thus a court appearance is unnecessary.
On the contrary, it may be that one or more beneficiaries object to the Will being proven, to which in these circumstances a slightly difficult process and a court hearing is anticipated, whereby the opposing beneficiaries are entitled to provide relevant documentary evidence to demonstrate their position. The Judge will then determine the outcome.
Who Can Access a Will?
Questions often arise regarding who is entitled to see a copy of a will in Ontario. Generally, beneficiaries and estate trustees are entitled to access the document. If there is uncertainty about how to get a copy of a will in Ontario, legal guidance is recommended.
For further advice on wills and estates, or to start planning your estate, the experienced estate lawyers at Devry Smith Frank LLP can assist at 416-449-1400 or email info@devrylaw.ca.
