A last will is the testator’s final wish on what happens to their estate, whom to allocate, and how to manage it. However, it can be a problem when the executor cannot find the will once the testator has passed away.
Wills and estates lawyers are usually adept at handling such situations. More often than not, families and executors are left wondering what to do next. If this has happened to you, here’s how you can proceed.
Is the Will Necessary?
The courts require the original copy of the will for the executor to be granted probate, meaning that the will is necessary for verification before the executor can administer the estate.
In addition, even if the will isn’t needed for probate, it still contains the testator’s orders, which the executor needs to know to distribute the estate properly. If the will is either lost or missing, it will be presumed that it does not exist and that the testator died intestate.
Presumption of Revocation
If the testator was not the last person to have the original copy of the will, no presumption of revocation occurs. In British Columbia, if the original copy of the will cannot be located, it is presumed that the will writer intentionally destroyed the document or did not want it to be found.
While a will is considered a confidential document, it should not be hidden. When the testator passes away, the executor is tasked to retrieve the will. This intention is demonstrated simply through the will writer notifying the executor where the will is.
As the executor of the will, failing to locate the will leads you to two possible directions, one of them involves having a copy of the will and another scenario where you don’t.
If a Copy of the Will Is Available
If you have a copy of the will, you can try to rebut the presumption of revocation by proving that there was no intention to destroy the will. So, you need to provide reasons and evidence for why the will went missing and that it was not the will writer’s intention to lose or destroy it.
Some evidence that can be helpful include:
- Past conversations with the will writer
- Documents written by the testator
- The relationship between the testator and the beneficiaries of the will
- Events that destroyed other documents, assets, or property that may have also destroyed the will
- The wording in the copy of the will
Once you’ve successfully rebutted the presumption of revocation, you also need to prove that the copy of the will is a valid will or that it can be cured into a valid one. Once confirmed, the copy of the will can be granted probate, and the estate can be administered.
If No Copy of the Will Is Available
If no other copies of the lost or destroyed original will are available, reproducing the content or what the testator wrote in their will is impossible. Legally, there are no remedies available to fix or cure the will.
While you can rebut the presumption of revocation and be successful in doing so, there won’t be another testamentary document to cure into the testator’s final will.
So, if no copies of the will are available, the will writer is presumed to have died intestate, and their estate will be distributed according to intestate laws.
Failing to locate the will of a testator can be a challenging situation. If you’re in this bind, it’s best to seek a wills and estates lawyer who can guide you through the process. They can help you rebut the presumption of revocation or advise you on what to expect from the intestate distribution.
Dreyer Davison Family Lawyers LLP is committed to preserving the best interests of families across the Fraser Valley and the Lower Mainland. We have a diverse array of experience across family law, wills and estates, and residential conveyancing.
We ensure that our clients feel confident and secure that their wishes will be followed. If you need wills and estates lawyers in British Columbia, call us at 604-539-2103 today.