No Original Will? Ensuring a Copy of a Will Holds Up in Ontario Courts

No Original Will? Ensuring a Copy of a Will Holds Up in Ontario Courts: Key Steps and Considerations

 
We ask at the end of the Will signing process shall we keep the original signed Will, or will you take it away for safekeeping?

In Ontario, a photocopy of a Will can potentially stand up in court, but it typically involves a more complex legal process. Here are the key points to consider if a Will is lost:

1. Original Will Preferred: Generally, the court requires the original Will. This is to ensure the document’s authenticity and to verify that it hasn’t been tampered with.
2. Lost or Destroyed Wills: If the Will is lost or destroyed, the court “may” accept a copy under certain circumstances. The person seeking to Probate the copy must prove:
   • The original Will’s existence.
   • The original Will’s contents.
   • The original Will’s proper execution (e.g., signed by the testator and witnessed as required by law). This now includes an Affidavit of Execution.
   • The original Will’s loss or destruction was not due to the testator’s intention to revoke it. This is often harder to prove.
3. Affidavit of Plight and Condition: A detailed affidavit explaining the circumstances surrounding the loss or destruction of the Will is often required. This affidavit should include:
   • Information about the testator’s intention regarding the Will.
   • Efforts made to locate the Will.
   • Evidence supporting the validity of the copy (e.g., testimony from witnesses who saw the original Will).
4. Court Discretion: The court has the discretion to accept or reject the copy based on the evidence presented. The burden of proof lies with the party seeking to prove the copy.

Given these points, it’s advisable to seek legal counsel to navigate the process if you are dealing with a copy of a Will. A lawyer can help gather the necessary evidence and present a compelling case to the court. This is why we often suggest keeping your original Will with your lawyer as they most often have a fire retardant safe as well as the notes and signed copies of the original and copies of the Will.

Ontario Laws on Lost Wills – Rule 75 Estates

Check out our article on Death Taxes in Ontario