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. Some people keep their will hidden to avoid upsetting loved ones with their inheritance choices. If no one knows the will’s location and it remains unfound after the writer’s death, problems can arise. We’ve seen many cases where executors have searched everywhere for the deceased’s will with no success. If the will is missing, they won’t know how to administer the estate in line with the testators wishes.

Is the Will Even Required?

The courts need the original will to grant probate. 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, the law presumes that it doesn’t exist and the testator died without a will.

Presumption of Revocation

In BC, if we can’t find a will, we assume the writer intentionally destroyed it or hid it. This is the presumption of revocation. Although the document can be confidential, will writers should not hide their will.T he executor should retrieve it easily after the writer’s death. Will writers should notify their executor in writing or leave the will in an obvious location, like 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.

You must also prove the will’s copy is legally valid or curable if you successfully rebut the presumption revocation. Once proven, the courts can issue a grant of probate and the executor can begin to administer the estate.

No Copies of the Will are Available

If the original will is missing and no copies exist, reproducing the will-writer’s instructions is impossible. Because of this, there aren’t any legal remedies to fix or cure the will. You may be able to rebut the presumption of revocation, 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. You should store the will where it won’t get accidentally destroyed or moved. Some spots to store a will securely include:

• 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 the safe’s contents are inaccessible, the courts may presume revocation.

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.