PROVING A LOST WILL

By: Melissa A. Stamkos

When a will cannot be located after a person’s death and that document was last known to be in the testator’s possession, there is a presumption in law that the will had been destroyed by the testator with the intention of revoking it. If a prospective beneficiary believes that the will was never revoked, but is simply missing, he or she can bring a court application to prove the validity of the will.

Rule 75.02 of the Rules of Civil Procedure sets out the procedure to be followed when proving a lost will. Where all parties with a financial interest in the estate consent to the proof, the court will accept affidavit evidence without a court appearance. Where all parties with a financial interest, do not consent to the proof, a court appearance will be necessary.

Parties that commence a court application to prove a lost will should be aware of the legal test involved, which requires a party to establish the following:

  1. Proper execution of the will;
  2. Trace possession of the will to the testator`s date of death;
  3. Rebut the presumption that the testator destroyed the will with the intention of revoking it; and
  4. Prove the contents of the lost will.

If the will is successfully proven in Court, the deceased`s wishes will be followed. Alternatively, if no will can be established, the deceased`s assets will be distributed under the rules of intestacy in accordance with the provisions of the Succession Law Reform Act.

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