Among the different documents that anyone can produce, notarize, and enforce in their lifetime, wills are sheets of legal work that set themselves apart as one of the mysterious and relatively unfamiliar ones of the bunch.
As much as humanity has progressed over the years and how much complexity has filled modern Canadian laws, last wills and testaments still hold their value as absolute pieces of documentation. Whether you’ve been meaning to write your own or witness and help a loved one take care of theirs, dealing with the paperwork in question can be quite confusing.
While there are many factors and concerns that you’ll need to iron out as you understand the way a will works, there’s one specific concern that bears familiarization above all else: What happens when a will is lost or destroyed?
Dealing with a lost or destroyed will
After a loved one has passed, you may find yourself in a bit of a whirl as to how you’ll help handle the way their estate is managed and what their intended arrangements for their funeral and burial may be. Typically, it’s in situations like these where you’d go ahead and look for the person’s will or contact their lawyer for a full reading once the death or incapacitation is confirmed— well, if you’re unlucky, this document can’t be found.
While it is rather unheard of, dealing with a lost or destroyed will is a concrete possibility that requires some preparation to ensure that matters are taken care of in a legal manner. If you find yourself in such a situation, it can be understandably difficult to figure your way around it; thankfully, we’ve got you covered with this comprehensive guide:
What does the law say?
In the legal context, dealing with a lost or destroyed will involves consulting with Ontario’s Rules of Civil Procedure—section 75.02 of the Ontario Rules of Civil Procedure. Based on the legal documentation, the main key pieces of information to take note of can be found in this specific excerpt:
“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.”
Handling certain situations
Often, dealing with a lost or destroyed will when handling the estate of a deceased loved one will result in one of two possibilities:
- All parties with a financial interest in a will end up consenting to its proof
- All parties with a financial interest in a will do not unanimously agree to the will being proven
To know what specific action will need to be taken once you find yourself trying to remedy the issue, let’s go over what experts say that the best practices are for both potential situations:
If all parties with a financial interest in a will consent to its proof
Suppose you arrive at a point where all individuals with a financial interest in a will do not dispute its validity. In that case, a straightforward process will be needed to ensue without the need for a court appearance. Once a lost will is proven under Rule 75.02, all parties with financial interest must consent to the proof of the will by drafting a document and filing it according to this format:
“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).”
If all parties with financial interest do not unanimously agree to the will being proven
Contrarily, having parties with financial interest fail to unanimously agree on the idea of proving a will involves following a more complicated process that entails taking extra steps and additional precautions. If one or more beneficiaries possess differing interests in terms of proving the speculated will, the best remedy for the situation is to enlist the services of a legal expert, such as Ontario Wills.
When it comes to dealing with wills, one of the most challenging situations that you and your family can be in is if the document in question is lost or destroyed. Through the help of the key pointers outlined in this guide, you’ll be able to ensure that everything pans out smoothly so that everyone with financial interest gets what they deserve!
Are you looking for a will and estate lawyer in Kanata that can help you deal with a missing or destroyed will? Our experts are here to help. If you’re looking for the right professional to take care of your current situation, get in touch with us today to learn more about our services!