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Wednesday, June 4, 2014

Can I probate a copy of the will, since I can't find the original?

What happens when an executor can only find a copy of a will and not the original? Can the copy be sent to the probate court? A reader has asked me about this. His letter and my answer are below:

"Can a person probate a copy of a will that is not notarized? There is no original to be found."

Notarizing really doesn't have anything to do with the answer to your question. Lawyers who prepare wills for a client prepare only one original. They usually provide the client with a copy of the will and keep a copy themselves on the client's file. The copies are almost never notarized, as notarizing would not in any way add to the validity of the copy.

When individuals prepare wills for themselves without the help of a lawyer, the instructions should say that the person should only sign one original.

The general rule for probate of a will is that you must have the original document to submit to the court. This rule is supported by practical reasons that have to do with preserving the intentions of the testator (i.e. the person whose will it is) and preventing confusion about the validity of the will.

While probating a copy of the will is not impossible, it isn't easy. You cannot simply send it to the probate court with the usual documents as if it were an original. This is because there is a presumption in wills law that if the original will cannot be found, it's because the testator destroyed it intentionally and did not want it to be his or her will. This is obviously going to work against you.

You basically have two options. The first is to try to overcome that presumption about the destruction of the will.  You will have to convince a judge that the copy you have is in fact a copy of a valid (and not destroyed) will. The evidence you might use could include testimony about conversations the deceased had with the family, or correspondence about the will with the deceased's lawyer.

The second option is to apply to the court to appoint an administrator. Rather than proceed as if there were no will, you could ask the court to appoint an administrator with will annexed. This basically means an administrator who is going to follow the will even though the will may not be legally binding. As with any court application, you can't be sure that you will get what you want, but having the support of other members of the family would be helpful to you.

Making a decision about which of these options to follow will take some thought. A key consideration should be the intestacy laws in your province. As you want to carry out the deceased's wishes, you need to know whether those wishes are substantially different from what would happen under local intestacy law. If the will is not valid and the judge appoints an administrator without ordering him or her to follow the will, that administrator will have to follow local intestacy law. If the will and the intestacy law are the same, this will be less of a concern.

This is definitely something you might want to talk over with a lawyer near you who is very experienced in wills law. Take the copy of the will with you, and talk through the options.




16 comments:

  1. My grandma was the baby of her family and her 2 brothers emigrated to Canada. The elder brother was a mounted police officer and used to send money to help out. He came and took her on a trip to Shetland where they were born and grew up. To cut a long story short he always said that when he died she was well provided for. The other brother was lovely too and it was him who called from Canada to let her know the elder brother had passed and he asked her "did you get your money from the will" his wife pulled the phone off him and said "he is going senile and talking rubbish." Anyway my grandma was not the type to look into it as if it was bad manners or she would be thought of as a money grabber. Anyway the brothers wife started sending 10 dollars in a Christmas card to my gran. How can I find out what the will said and if my grandma was ripped off.

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  2. Hi Lynne,
    I live in Ontario and an executor to my mother's estate. Her last Will was signed and remained at her lawyer's office until after she passed. It was only retrieved following her death and was accompanied by a notarized copy from the same law office. Since then the original has gone missing. Retracing steps indicates my father was the last to have it in his possession. While there is speculation that he is not being honest with its whereabouts, we need this for probate - an application of which he has already signed. Is it an offence to conceal or hide a deceased's Will? In this case what are the chances the court will accept the notarized copy dated after death without too much time, money and effort spent? We have torn the house apart and are not able to locate the original.
    Many thanks for your insight.

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    Replies
    1. What do you mean by your father has already signed an application for probate? He would need the will for that, and he'd have to be named the executor in order to apply. That part of your question doesn't make sense to me.

      It is possible to probate a copy of a will, but it is rare because it's not an easy process. You cannot use the normal short-cut, informal application that we use in 90% of cases.

      The problem is that the law says when an original will cannot be found, the law presumes that the testator (in this case, your mother) destroyed it intentionally. You must now work to rebut that presumption.

      In your case, that may actually be possible because of the chain of custody you have mentioned and the fact that the original was actually seen after your mother passed away. Therefore she could not have destroyed it.

      This is more expensive than the usual probate process because you have to ask the judge to make a ruling about using the copy. However, it's not likely to be a whole trial. It can probably be done with a chambers hearing.

      And yes, it is unlawful to conceal the will of a deceased person from the named executor.

      Lynne

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    2. Thanks for your reply Lynne!

      When the lawyer attended, we didn't realize the copy we had was only the notarized copy dated post-death. So my father agreed to probate, along with us children by signing the prepared application. Only after we brought out the contents of the envelope where the Will had been, did we realize it was no longer there.

      While unlawful to conceal, I'm assuming it would be impossible to prove, correct? There are four executors on this estate. My father and us, three children, all named. Further, even if we could prove he was the last to have it, is there any recourse?

      Many, many thanks. You are incredibly helpful.

      S

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  3. Hello,

    My father is trying to be proactive and transfer his assets to the intended parties while alive to avoid confusion once hes gone, which is great. My half sibilings have already been transferred their properties/assets. Im the remaining child and he would like me to inherit the property in which he currently resides.

    He has me listed as the executor of estate to his property but does not express i am to transfer the property to myself. As the executor, do i have to sell the property or can it be transfereed as long as other beneficiaries received whats listed, debts and taxes are paid?

    Secondly, if his intention is for me to inherite the property he thinks adding me too the mortgage would be easiest however im worried about how that mighy tie me up financial as i already have a mortgage with my husband.

    What do you propose is the best way to ensure the property is passed down to me according to his wishes. I dont have a good relationship with my siblings so i want to ensure everything is set in stone and im protested as i know they will try to ensure i get as little as possible

    I hope this makes sense. Thank you

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  4. Hi so here's the issue my mom passed 4 yrs ago. All I have is the photocopy of the will and she left the house and a car to me the photocopy of the will I had drilled out of a safety deposit box at the bank.im sure they keep records of it.im the excuter of the estate I have 1 half brother and 3 half sisters which had nothing to do with my mom for over 20 years.when she was sick and needed stuff I looked after her .I've lived in the same house since 78'. I've looked and looked for the original copy the lawyer doesn't have it at all. When this goes back to court what else can I do to prove I didn't destroy the original will and how can I convince a judge that I'm honest with the intentions I have 3 or 4 signed afidavits from the lawyer saying that it's a true copy of the will

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  5. So here's my question my mom passed 4 yrs ago I was left a house that I've always lived in and her car. I only have the photocopy of the will which I had drilled out of her safety deposit box at the bank cause I forgot I had a key to it.i have had the lawyer who did the will sign an afidavits saying its a true copy of the original will .I'm trying to get it probate I have 1 step brother and 1 real sister and 2 step sisters in the will my real sister and the one step sister were named as not to recieve anything.nothing was mentioned of the other siblings as non of them had no contact with my mom for over 20 years .I lived with her and took care of her while she was alive.how can I convince the judge that I didn't destroy the original will and I'm being honest with my intentions? I'm very stressed out about this

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    1. Well, it's not going to be easy. The law presumes that an original will that cannot be found was deliberately destroyed by the testator. That's what the probate application is supposed to be about - not whether YOU destroyed it.

      Is anyone actually accusing you of destroying the original will? If they are, that's on them to prove. That makes no sense anyway - why would you destroy the original and then try to probate the copy?

      You should be trying to prove that your Mom did not destroy the will and this is a copy of the last will she ever made. Consider things such as how long before her death she made the will. How much opportunity did she have to make a new one? Did she always use the same lawyer? Did she make previous wills that had the same basic division of assets? Every case is different but you need to stop going down the road about whether you destroyed it and talk about whether your Mom destroyed it.

      Lynne

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  6. No she didn't destroy it it was not a subject she wanted to approach as it was . She wasn't even gonna make a will in the first place but it was her friend and my girlfriend at the the time that brought it up about how it's a good thing to have one in place. It was 6 months from when she made it to when she passed. Me and a friend have looked and looked for the original the only thing that was found was ignorant letter written by the youngest sister about how much she hated my mom but it's from years ago.in
    M gonna bring it up to my lawyer ( if that's a good idea) just to show how that relationship was

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    1. I know that some of the things that get discussed seem ugly but it's important to tell your lawyer about all of it. The lawyer and you together can decide whether any given item makes it into evidence, but at least you will have told the whole story to the person who you hired to help you.

      This stuff isn't easy. Hang in there.

      Lynne

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  7. The lawyer hasn't accused me if destroying it it got postponed in court cause there have been a couple case where the excuter has destroyed it . I talked to him about it he just wants to make sure there's nothing the judge can hedge on

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  8. Thank u so much for taking time to answer my questions I appreciate it

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  9. Hello:
    My father recently went into a nursing home and I sold his house for him having power of attorney. I took his will to his lawyer as requested to have the closing papers prepared. I am also executrix of my father's will. Now my father has died and the will cannot be found. The lawyer keeps telling me it will be found, but weeks are passing and nothing is happening. I cannot proceed with various duties without a signed will. I have an unsigned copy. What can I do now? Thank you.

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    1. I cannot imagine why your father's will was needed to close a real estate deal under the power of attorney. I suppose, though, at this point it doesn't matter.

      If a copy is all you have, you are going to have to try to work with it, but you won't be able to do that without the assistance of the court. When an original will cannot be found, the law assumes that the owner of the will destroyed it intentionally. You will have to prepare evidence of what happened to the will to defeat that assumption. If you are successful in doing so, the court will likely issue you a grant that you can use, just as if the original will was there.

      The evidence you need is going to have to include a detailed affidavit from the lawyer and perhaps his/her staff about how they received the will and now can't find it, etc.

      You should get a different lawyer - one who knows something about wills - to take care of this application for you. The new lawyer will impose a deadline on the previous lawyer so that he or she either finds the will or gives you the affidavit you need. You said it has been weeks already, and that is long enough.

      If you take these steps and it ends up costing you money to hire the new lawyer, perhaps it would be appropriate to pass on this cost to the old lawyer. If there is a court hearing, you can ask the judge to award you costs against the old lawyer for losing the will then causing a delay. Make absolutely sure that the lawyer did not give you back the will at any point.

      Lynne

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