What happens if I can't find the original Will?
Generally speaking, an original Will is required for the Court to issue a Certificate of Appointment of Estate Trustee (formerly called “probate”); and even where probate is not necessarily required, a deceased person’s financial institutions will likely require the original Will or a notarial copy.
It sometimes happens that the Deceased maintains a copy, but not the original; and the original cannot be found.
Where the original Will cannot be found, there is a procedure for proving a lost Will, but you will need to satisfy the Court of four things:
- that the Will was duly executed and satisfies the formalities required for a Will by the Succession Law Reform Act;
- that the original Will existed as of the date of death, either in the Deceased’s possession or someone else’s possession;
- that the Will was not destroyed with the intention to revoke it (where the original cannot be found, it is presumed to have been destroyed with the intention to revoke it, so that presumption must be rebutted); and
- proof of the contents of the Will (easily satisfied by a copy of the Will, or other evidence).