This Blog was written by: Emily Racine
As we know, the statistics are less than ideal for the number of Canadians who have a will let alone a recently updated one. That being said, having a will is not enough – it is important to have the original will. In order to apply for probate in Ontario, the original will must be turned over to the probate court. If the original will has been lost, this can create major problems, delays, lead to increased legal costs for an estate and create the possibility of a declaration that the deceased, in fact, died intestate.
If a signed copy of the will can be located but the original cannot, there is a process by which a copy of the will can be proven as the original. However, case law has established that where the original will was in the possession of the testator and has been lost, there is a presumption that the testator themselves destroyed the will with the intent of revoking it. However, this presumption can be rebutted. If all parties who are financially interested in the estate consent to the signed copy of the will being “proven” (in other words, treated like the original) then the parties can file affidavits showing: (a) the will was properly executed and what the contents of the executed will are; and (b) rebut the presumption that the testator destroyed the will with the intention of revoking it. If a judge is satisfied, then the signed copy can be filed and treated as the original.
Therefore, when you execute a will, it is just as important to keep it in a safe place. If the will is kept in the possession of the testator, such as at home, and is lost, it will be extremely difficult to rebut the presumption that it was destroyed. Oftentimes lawyers will have a vault where they keep clients’ original documents. This is a good option. Otherwise, if you decide to keep the documents in a safety deposit box, it is best to make sure that your executor or power of attorney has access to that box and knows the documents are there. The point to take-away from all this is that all the work is not done when a will is completed. Think carefully about where you store your original documents since the consequences of losing the originals can nullify all your estate planning efforts.