Subpoenas for Testamentary Documents: Getting a Copy of the Will when the Executor Refuses

Regardless of what an executor might think, beneficiaries (and people allowed to challenge a will even if they are not a beneficiary in the will: spouses and children) are legally entitled to receive a copy of the testator’s will. When executors refuse to provide a copy of the will, beneficiaries can issue a subpoena, forcing the executor to deliver a copy of the will. According to part 25 of the Supreme Court Civil Rules,

“A person may apply for a subpoena to be issued to require a person to deliver to the registry one or more of a testamentary document, an authorization to obtain estate information, an authorization to obtain resealing information, an estate grant, a foreign grant, a resealed foreign grant and a certified or notarial copy of such a document.”

While someone may be entitled to receive a copy of a document such as a will upon request, the person issuing a subpoena must have a valid reason to do so.

The Subpoena Process

To clearly illustrate the process, let’s look at an example: a woman, Ann, is one of the beneficiaries in a will where the executor is a man named Todd. Todd is in possession of the testator’s final will.

a)      Failure to Deliver a Copy of the Will

For the upcoming tax season, Ann needs a copy of the will to see how her inheritance of the estate will impact a certain tax benefit. Since she is a beneficiary of the will, she requests that Todd provide her with a copy. After multiple direct requests to Todd for a copy of the will, he fails to deliver one to her. There could be many reasons that Todd is choosing to do this, however, these reasons likely do not legally justify his direct refusal to provide a copy of the will. Ann decides to issue a subpoena to the courts to enforce Todd to act on his responsibility as the executor.

b)      Issuing a Subpoena

According to the Supreme Court Civil Rules, the courts will only grant the ability to issue a subpoena when,

1. The document in relation to which the subpoena is sought is required for the purpose of any application or other matter under Part 25 (those relating to matters of estates), and
2. The person to whom the subpoena is addressed has failed to comply with a request of the applicant to provide the document to the applicant.

To summarize, the person requesting access to the document must have a valid reason for requiring a copy of the will, and the person being subpoenaed must have previously chosen not to provide the document upon request. Applying this to the example above, Ann has asked Todd for a copy of the will, Todd has failed to comply with this request and a copy of the will is required by Ann for tax purposes. Ann brings an application before the courts to issue a subpoena. Once Ann’s subpoena is issued by the courts, she serves Todd with the documents directly and in-person.

After being served with the subpoena, Todd has three options:

1. Comply with Ann’s request by giving the courts a copy of the will;
2. Explain in front of the courts how he is not in possession of the will anymore; or,
3. Challenge the subpoena claiming that it’s unnecessary to comply with it.

c)      Enforcing the Subpoena

If 14 days pass after being served with the subpoena and Todd has not done anything, Ann can involve the police to enforce the subpoena. Ann must first be able to provide proof of the subpoena being served, proof that a copy of the will is required, and a copy of the official issuance of the subpoena by the courts. Now, Todd can be apprehended and brought before the courts where he could be detained in custody. Todd can also be ordered to pay any costs that arose to Ann because she was not given a copy of the will upon her valid request.

While the subpoena process may seem complex and daunting, most cases are settled before it comes to the last resort measure of the executor being held in custody and forced to appear in front of the courts. If you’re a beneficiary who is not receiving a copy of the will upon multiple requests, contact an experienced estate lawyer today. Beneficiaries are entitled to a copy of the will and we can help you receive one.

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.