Whether you have a substantial estate, or simply a few sentimental items, having a will is crucial if you want to dictate how your possessions will be distributed when you are gone. Without a will, you are considered to have died “intestate” and the provincial law then dictate the division of your estate.
Perhaps you have lost your will, you are preparing to make a will, or maybe you are wondering whether or not you should make copies of the one you already have.
In any circumstance, the first and foremost thing to know is that a will being lost does not automatically invalidate it. A will becomes invalid only if and when the will maker revokes the will intentionally.
There are a few different factors to consider when a will has been lost, and different processes depending on the situation. Below, we’ve outlined a few of the factors that need to be taken into consideration, and what effect they will have on the estate.
Possession of the Will
If a will is seemingly lost, but was in the will makers’ possession immediately before their death, the assumption is that the will was revoked intentionally. This is difficult to disprove, and in this circumstance, the estate will usually be considered “intestate”.
If the Will is missing but was not in the possession of the will maker before their death, the deceased’s executor will need to find a photocopy of the original.
Copies of the Will
Often, if a person had their Will drawn up at a lawyers office, the lawyers office will keep the original and the individual will take home a photocopy, usually containing the information of the lawyer’s office that holds the original. (Your accountant may also be involved in this process).
If the original is still unable to be found, the photocopy, along with supporting affidavits from the estates executor and the lawyer who prepared the document are more often than not sufficient in proving the photocopy is the deceased’s original Will.
A photocopy is not to be mixed up with a true copy, where a photocopy contains copies of the necessary signatures, a true copy only contains the names of the deceased and the witnesses in quotes. True copies are difficult to have proven as originals.
No Will and No Copy
It is possible, still, to prove the wishes the deceased had laid out in their last Will, even without the original or a copy, through a Court application. The deceased’s family and friends must go before a judge and show evidence supporting their claims of what the deceased’s wishes were for the estate. If no proof is evident, the estate will go into intestacy.
If no Will or proof of last wishes can be found, the estate becomes intestate, in which case the provincial government will decide how your estate is to be divided. There are various ways in which they will typically divide an estate.
- If you have a spouse and no children, the estate will pass to the spouse
- If you have a spouse and children, the estate will be divided amongst them
- If you have no spouse and no children, the estate will pass to your parents
- If you have no parents, the estate will be divided amongst your siblings, and so on…
If you have a Will, you have possessions, money, property, etc. that you want to be given to specific people upon your passing. It is important to keep your Will, or at least a photocopy of it, in a safe place that will be easily found by your executor when the time comes.
If not, you risk having your estate divided up in a way that you have not decided on.