Originally Published: April, 2018
Updated: May, 2023
What is a Will and what happens if it is lost or destroyed?
A last Will and testament is a document that sets out the deceased’s final wishes regarding the distribution of their assets and the handling of their affairs after death. When you have a Will in place it provides the peace of mind that after your passing all requests, assets, and affairs will be properly handled in accordance with your wishes.
If you have determined that the Will is lost or destroyed, there are a series of actions you will need to take.
Your First Steps: Dealing with a Lost Will
You should first start with a search of the deceased’s belongings, any safe deposit boxes and with their lawyer. If the original Will cannot be found after a search, in Ontario, it is assumed that the will is void. It is possible to challenge this assumption, but it is often difficult to bring sufficient evidence to prove your case. You may also choose to challenge that a Will was intentionally destroyed, perhaps by a third party who had more to gain in a previous iteration of the Will.
At this point, it is a good idea to consult an experienced lawyer who can guide you through the process of dealing with a missing Will. Often your lawyer will make an effort to locate a lost Will by advertising to lawyers in the province or contacting family and friends of the deceased.
Are There Any Previous Wills Available For Reference?
If the most current will has been destroyed or lost, it may fall back to a previous version of the Will, provided that it was not revoked or voided.
It is best practice to destroy Wills that have been revoked or voided to prevent potential conflict or misrepresentation of the deceased wishes.
If a photocopy of the Will with complete signatures is available, the lawyer who drafted the Will and the executor of the estate may be able to prove this was the most current Will of the deceased.
Was the Will Destroyed by the Testator?
If the deceased intentionally destroyed their own Will, this revokes or voids the Will. For this reason, after their death, an intentionally destroyed Will cannot be argued to correspond with the deceased individual’s wishes.
What If You Cannot Locate a Previous Version of the Will?
If there is no available previous version of the Will, the estate will be divided in accordance with local laws. This practice is the same as if they never had a Will.
If this scenario arises, friends or family members can make a legal claim according to the standard procedures when no Will is present.
Consulting with a lawyer experienced in Wills and estates can help you navigate your unique circumstances to understand your options.
A last Will and testament is an important document that helps those you leave behind divide your assets, and comply with your wishes. Without a Will that’s secured and easily available, your family and friends will be left to navigate dividing your assets without guidance.
There should be only one original version of a Will to avoid confusion and misrepresentation of your wishes. If you want to manage its safety and security yourself you could choose to store it in a safety deposit box at a bank, or a similar secure location. You may also entrust it to your lawyer who helped you create your Will.
If you are currently navigating the difficult process of dealing with a missing Will or are thinking of drafting your own Will, contact Epstein & Associates for a free consultation.
This blog is made available by the law firm publisher, Epstein & Associates, for educational purposes. It provides general information and a general understanding of the law but does not provide specific legal advice. Any specific questions about your legal concerns please contact us now and speak to an expert today.