June 1, 2012 By:
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Losing track of important documents can be a challenge for those left behind.

Your eccentric friend has just died. Over the years, she has told you again and again that she has left you a large bequest in her Will. You are sorry about her death, but human nature being what it is, you are curious about your bequest and whether it will help with that winter holiday next year.

The problem is that a signed copy of your friend’s Will cannot be found. It might be with a lawyer (she saw many lawyers over the years to right her many real and imagined wrongs). It might be in a bank safety deposit box (she also banked at many different banks over the years). Or, it might be in her home (she was a hoarder).

Locating the Wills of deceased persons can be a challenge. In many cases, Wills are signed in the presence of a lawyer and the original is left in that lawyer’s office for free safekeeping. Organized people usually then keep a clearly marked file among their personal papers, with a copy of the signed Will and a notation of what law firm has the original. In these cases, finding a deceased’s Will is simple.

In other cases, a little sleuthing by the executor, family, friends and so on will locate a copy of the signed Will in the deceased’s papers or safety deposit box. If a lawyer prepared the Will, the law firm’s name is usually on the copy and the Will can then be located. But sometimes the deceased’s original signed Will cannot be found – nor can a copy (signed or unsigned). What happens then?

This can be a problem. The case law in Ontario is relatively clear. If the deceased took possession of his or her Will after it was signed and the Will cannot be found, the deceased is presumed to have destroyed his or her Will and the deceased’s assets pass as an intestacy. This is usually quite surprising to those who thought that they might or would inherit from the deceased. In an intestacy, instead of the deceased's Will directing whom the beneficiaries would be, it is an Ontario statute that will do so.

The legal rationale, however, is that if the signed Will can be traced to the deceased prior to his or her death, the deceased had the last chance to destroy the Will and is therefore presumed to have done so. However, the presumption that the deceased destroyed the Will can be overcome, depending on the facts of the situation.

If a photocopy of the signed Will can be found, in most cases and with supporting affidavits from the deceased’s named executor and lawyer who prepared the document, the executor will usually be successful in proving the photocopy is the deceased’s original Will. There is an important distinction between a photocopy that has the photocopied signatures of the deceased and witnesses and a photocopy that has the names of the deceased and witnesses in quotes. Lawyers often call this latter type a “true copy”. A photocopied Will, complete with photocopied signatures, can normally be proven as an original Will while a “true copy” normally cannot.

Regardless of whether a “true copy” or an unsigned copy of the Will is found or even if no copy of the Will is found, the deceased’s last wishes can sometimes be proven and a Will, of sorts, can be created through a Court application. This is essentially a mini-trial in front of a judge. The success of proving the deceased’s wishes in this manner will depend on the evidence that can be provided by the deceased’s family, friends and professionals as to what the deceased’s wishes really were and what evidence there is of these wishes. If there is not sufficient evidence to convince a judge, then the Will is presumed to have been destroyed by the deceased.

Needless to say, the cost of making a Court application to present sufficient evidence to prove that the Will is not lost or what the deceased’s wishes were is substantial, even if everyone is in support of the application and there is no opposition. Normally, however, there are competing interests in play.

If the deceased’s Will is found or is proven in Court, the deceased’s wishes will be followed. If, on the other hand, no Will can be established, the deceased’s assets will be distributed as an intestacy and in accordance with the provisions of the Succession Law Reform Act of Ontario (SLRA).

The SLRA provides that in an intestacy, the first $200,000 of the deceased’s assets are paid to the deceased’s married (not common law) spouse, if alive. The balance of the assets is then divided between the married spouse and the deceased’s children. If the married spouse signed a separation agreement that released any rights to the deceased’s estate, this may disentitle the married spouse from any share but will still not entitle a common law spouse to share in the deceased’s estate.

If there is no surviving married spouse, then the assets are divided among the deceased’s children. If one or more of the deceased’s children are not alive, then the children of the deceased child will inherit the deceased’s child’s share equally. If there are no children or grandchildren alive, the deceased’s assets, depending on the situation, will be divided among the deceased’s parents or, failing them, the deceased’s siblings and then to aunts, uncles, cousins and so on.

For those who are in common law relationships, both partners should have a Will. In an intestacy, a common law partner will have a right to the proceeds from any assets where the surviving common law spouse is a named beneficiary (for example, RRSPs, RIFs and insurance policies) and perhaps some compensation as a dependant, but no automatic right to otherwise share in the deceased’s estate.

The SLRA distribution may be in accordance with what the deceased would have wanted in any event, but in most cases, it is not. These competing interests are what lead to opposition in any application to prove a lost Will. One group will benefit if the Will is proven and often a separate group will benefit if the Will is determined to be lost.

The message here is to not only make a Will, but also when it is made, leave the signed copy with the lawyer with whom you made it. Secondly, make sure that your executor and family know where the signed Will is being kept. Third, do not keep your signed Will in your possession. If you are somewhat of a control freak who must keep your signed Will, at least keep it in a bank safety deposit box away from your everyday possessions as there it is less likely to get lost.

As to the bequest from your friend, if the Will cannot be found or proven, you are out of luck and you are going to have to finance your winter holiday some other way!

John Peart is a partner with the Ottawa law firm of Nelligan O’Brien Payne LLP (www.nelligan.ca) and a member of its Wills and Estates Group. John is certified as a specialist in estates and trusts law by the Law Society of Upper Canada and is also a member of the International Society of Trust and Estates Practitioners.

[This article was originally published in the May 2012 issue of Fifty-Five Plus Magazine..]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.