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

Beneficiaries, spouses and children have the right to receive a copy of a testator’s will, regardless of the executor’s opinion. When executors refuse to provide a copy of the will, beneficiaries can issue a subpoena. 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.”

To use a subpoena to request a copy of a document, you must have a valid reason.

The Subpoena Process

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

a)      Failure to Deliver a Copy of the Will

Ann needs a copy of the will to see how her inheritance 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 don’t legally justify his 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

The person who requests access to the document needs a valid reason, and the person who receives the subpoena must have previously refused to provide that document. Applying this to the example above, once the courts issue Ann’s subpoena, she serves Todd with the documents directly and in-person.

Todd has three options after receiving the subpoena:

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 Todd has not done anything after 14 days, Ann can involve the police to enforce the subpoena. Ann must provide proof that the subpoena was served, proof that she requires a copy of the will, and a copy of the court’s subpoena issuance. 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.

If you’re a beneficiary who is not receiving a copy of the will after multiple requests, contact an experienced estate lawyer today.

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.