December 12, 2022
Searching for a Will

It can be difficult to know where to start when searching for a will. First and foremost, remember that a will does not necessarily have to be prepared by a lawyer. If you think the deceased may have prepared a holograph will, you will want to make sure you don’t automatically discount any handwritten documents.

Another thing to bear is mind is that finding a photocopy of a last will and testament will not end your search. This is because there is a presumption that if the original will cannot be located, it is because the testator intentionally destroyed it, revoking the will. Furthermore, if you or someone else is planning to apply for probate, they will need the original will.

To begin your search, a good place to start is among the personal effects of the deceased. Safety deposit boxes, personal safes, and desk drawers are common places where a will might be kept. If you know the deceased had a will prepared by a lawyer, you should contact that lawyer and see if the lawyer has a copy of the will in their records.

It may also be possible that the deceased had their will deposited with the court. To check, you should contact the Registrar of the Superior Court of Justice in the location the deceased lived.

What to do if the Original Will has been Lost

It may be possible that your search only reveals that the original will has been lost or destroyed. You may very well know the last wishes of the deceased, say, because you found a copy of the will in your search for the original. If this happens, you may want to consider a legal proceeding that is called “proving a lost or destroyed will”. This kind of proceeding is found under Rule 75.02 of the Rules of Civil Procedure, and reads as follows:

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.

The key word in this rule is “all”. Basically, to prove a will, all persons with a financial interest in a will have to agree that the copy being put forward captures the valid last will and testament of the deceased. If even one person refuses to consent, or is unable to, then the will cannot be proved. If that happens, depending on your specific situation a number of things may happen, and at this point it would be wise to consult with a legal professional to determine how best to proceed.