Suppose you know that your father had a last will and testament before he passed away. You know that he went to a lawyer who prepared the will with the formalities required by the legislation, the Succession Law Reform Act. You know that you were the named beneficiary in the will inheriting his estate. Your father dies but you cannot find his executed will which the lawyer gave him. However, the lawyer has an unexecuted copy of the will. In these circumstances, you should apply to the court to prove a lost will. Any person claiming to have a financial interest in an estate may make an application to have a testamentary instrument put forward as the last will and testament of the deceased.
The law is well settled and difficult to meet. There are two main issues. Firstly, you must prove that the will was lost and not destroyed. If an original, executed will was in the possession of the testator (your father) and cannot be located following the testator’s death, a rebuttable presumption arises that the testator destroyed the will with the intention of revoking it. The courts have held that the burden on the person who is attempting to rebut this presumption is a heavy burden. There must be a very strong case to be made out that the will was lost and not destroyed.
Secondly, you must prove that the copy of the unexecuted will is a true copy of the lost executed will. This issue involves proving the proper execution of the lost will and proving that the contents of the unexecuted copy is a true copy of the lost will and not simply a draft of the will found in the lawyer’s file. A will is properly executed when the testator signs it in front of two witnesses. The proper execution of the will may be proven by the testimony of the lawyer who prepared the will because he or she is usually one of the witnesses to the testator’s execution of the will. In order to prove the contents of the lost will, you must have cogent evidence that establishes beyond a reasonable doubt the contents of the lost will. Factors that a court may look at to accept the copy of the unexecuted will as reflective of the contents of the lost will include the nature of the content of the unexecuted will itself and the testator’s relationship to the beneficiary. If you find yourself attempting to prove a lost will and have no copy of the unexecuted will to prove its contents, other evidence has been accepted by the courts such as, solicitor’s interview notes with the testator or oral testimony from close family members.