In BC, the Wills, Estates and Succession Act allows for a copy of a will to be probated in cases where the original will does not exist or cannot be found.
The main issue that an applicant for estate grant will need to overcome in such circumstances is the presumption of revocation (ie. if a will cannot be found and its last known location was in the will-maker’s possession, the law presumes that the will-maker destroyed the will with the intention to revoke it). To do so, the applicant must provide an explanation as to what happened to the originally signed will.
Some of the matters that an applicant ought to address when attempting to probate a copy of a will include:
- Is the document being submitted a copy of a legally valid will?
- Where was the copy found?
- Where is the last known location of the original will?
- Is there anything to suggest the will was or was not revoked? (For example, did the will-maker do or say anything to affirm or contradict the provisions made in the will before they died? Was the will-maker known to keep their affairs in order before they died? Etc.)
Depending on the evidence submitted, the court will either issue the grant in relation to the copy or decline to issue the grant and that the applicant attend in court to make their case, on notice to all persons who would have been entitled to share in the estate if the deceased had died intestate (ie. without a will). This can ultimately result in a lengthy (and costly) court application that is best avoided wherever possible.
Ultimately, keeping an original will somewhere safe and alerting others to that location by way of a wills notice filing with Vital Statistics Agency are two key steps that can prevent a will being lost and avoiding the risk of having to probate a copy.
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This article is intended for information purposes only and should not be taken as the provision of legal advice. Grace C. Cleveland is a lawyer with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or firstname.lastname@example.org.