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Missing Will: Executor Can’t Locate The Will, What Now?

Missing Will: Executor Can’t Locate the Will, What Now?

It’s common for people to desire a sense of privacy and confidentiality when they prepare their last will and testament. For some, the risk that loved ones might be insulted or angered by the inheritances you chose to gift them with is enough reason to keep the will away from their eyes. This can create problems in cases when no one knows where the will is, and it is not found after the will-writer has passed away. We’ve seen many cases where executors have searched everywhere for the deceased’s will with no success. They’re left wondering what they can do if the will is missing and how they should administer the estate.

Is the Will Even Required?

In order to be granted probate, the courts require the original copy of the will. This means that the executor needs to provide the original will to have the will verified and begin administering the estate. Further, even for a will that doesn’t require probate, the executor needs the will in order to know how to distribute the estate. When the will is completely lost or missing, it is presumed that it doesn’t exist and the testator has died intestate.

Presumption of Revocation

There is no presumption of revocation if the will-writer was not the last person in possession of the original copy of the will.

In BC, there is a presumption that if an original copy of a will cannot be found, it is because the will-writer has intentionally destroyed the document or does not want it to be found – called the presumption of revocation. While a will can be a confidential document, it is not meant to be hidden and is intended to be retrieved by the executor once the will-writer has passed away. This intention can be demonstrated simply by the will-writer notifying the executor of the whereabouts of the original will or by leaving the will in a place one would expect to find a will (such as a safety deposit box).

As an executor, if you can’t find the original will, there may still be a chance to “save” the will if you have a copy available.

A Copy of the Will is Available

If you have a copy of the will, you can attempt to rebut the presumption of revocation if you can prove that there was no intention to destroy the will. Usually, this means you will need to provide reasons and evidence as to why the will has gone missing and that it was not the writer’s intention for this to happen. To prove this, some evidence that can be used includes:

  • Past conversations with the will-writer,
  • Other documents written by the will-writer,
  • The will-writer’s relationships with the beneficiaries of the will,
  • An event causing other documents/property/assets to be destroyed that may have caused the destruction of the will as well, or
  • The wording in the copy of the will.

If you’re successful in rebutting the presumption of revocation, you must be able to prove the copy of the will is a valid will or can be cured into a valid one. If this is proven, then the copy of the will can be granted probate and the estate can be administered.

No Copies of the Will are Available

Unfortunately, if the original will is missing and there are no copies to be found, it’s impossible to reproduce what the will-writer had written in their will. Because of this, there aren’t any options in terms of legal remedies to fix or cure the will. By rebutting the presumption of revocation, you may be successful; however, there won’t be another testamentary document to cure into the testator’s final will. In the case where there aren’t any copies of the will, the will-writer will have died intestate and their estate distributed according to intestate laws.

How to Prevent a Will from Going Missing

As a will-writer or future will-writer, to prevent this from happening with your will, the solution is to put the will in a place that is safe but not hidden. We understand that the contents of the will may feel confidential or controversial for loved ones; however, they’re eventually going to see the contents of your will and trying to hide the document will not help anyone. At the very least, your executor should be aware of where the will is and how they can access it. Further, you will want to store the will in a safe location where it won’t be accidentally destroyed or moved. Some spots to store a will securely could be:

  • In a locked filing cabinet,
  • In a fire-proof safe,
  • In a safety deposit box at the bank, or
  • At the will-drafting lawyer’s office.

When choosing to keep your will in a locked cabinet/safe, be sure that the executor will have access to the key. If no one can access the contents of a locked safe, you risk dying intestate as it’s assumed you intended for no one to ever open the box and find the will.

If you can’t find the will written by a loved one, contact an experienced estate lawyer today. We can help you to rebut the presumption of revocation or advise you on what to expect from the intestate distribution process.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

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