It’s always a little surprising when a famous celebrity with a massive estate dies without a will. This was famously the case with billionaire Howard Hughes back in the 1970s, who became the subject of a famous forged Will ‘uncovered’ after his death. More recently it was the case with the rock musician Prince, who left a vault containing hundreds of hours of recorded music, and no clear instructions on who inherits royalties from his legacy.

Then there’s the more recent case of the Queen of Soul, Aretha Franklin. When she died in 2018 after a battle with cancer, her family believed that she had no current Will to distribute her net worth of $80 million. Her family later went to battle over Ms. Franklin’s two wills – one written in 2010 that had been in a locked cabinet, and another dated 2014 that was handwritten and found in between couch cushions after her death.

In 2023, a jury ruled in favour of two of Ms. Franklin’s sons, finding that the 2023 Will was, in fact, valid. The brothers were fighting against a third sibling, who was attempting to prove the 2010 Will remained valid. However, the re-discovered 2014 handwritten papers clearly state “this is my will,” which the jury ruled showed Ms. Franklin’s true intentions for her estate.

So what happens when an original Will is lost?

If your will is lost in Ontario

If you lose your original Will in Ontario, the legal presumption is that it’s no longer valid. Without an original Will, it’s easy for the law to assume that you’ve destroyed it by choice, and thus it no longer reflects your true wishes.

However, that may not be the case. Suppose that the original Will may be lost, but your family or friends have a copy of the Will which, while not original, is an exact replica of the contents of the original Will. What happens then?

The question then is really about whether everyone agrees with the outcome. If everyone with a financial interest in the estate agrees on next steps, then the Courts can rely on evidence, such as through an affidavit (a sworn statement), that these were the deceased’s last wishes and should be carried out. This can be done through a simple application to the Court, and does not require an appearance or overly formal procedure.

What happens, then, when not everyone agrees to prove the Will?

When a lost Will is disputed

Naturally, if there’s debate between those who have financial interest in a lost Will then it is more difficult to prove that a copy of that Will properly reflected the testator’s (Will maker’s) intentions. One person might argue that the Will is accurate, whereas another says it is not and that’s why the testator themselves destroyed the original.

In these cases the Courts have ruled on a four-part test under the Rules of Civil Procedure, which guide Ontario’s civil courts. A party looking to prove a copy of a Will is an accurate representation of the testator’s wishes must prove that:

The Will was duly executed (signed by the testator with proper witnesses);
The particulars of the possession of the Will, and after if it was lost after death (who had the Will up until it was lost);
Rebuttal of the presumption that the testator destroyed the Will in order to revoke it (the testator had not destroyed it themselves); and
Proof of the lost Will’s contents (what was in the Will and was it clear to the testator when they signed it).

Of course a lawyer can be most helpful when it comes to proving the Will. Lawyers do not simply draft wills and walk away. Rather, they take copious notes during the process – documenting the testator’s wishes, confirming that the testator has capacity to make the Will and issue their instructions, confirming that the Will is signed properly with proper witnesses, and that it is filed with the Court.

Even if the lawyer themselves does not keep the original Will, any records or recollections can be helpful in proving a Will. Similarly, if any witnesses can be located, they may also be able to confirm that they witnessed the testator signing, and that everything was done above board.

Final Thoughts

While important documents do get lost, such as when moving house or changing cities or even just Spring cleaning, remember to always keep your original Will in a safe and secure location. If your lawyer or the Court is not holding the original copy of your Will, make sure it is in a safe and secure location that your executors can identify after you’re gone. Sending your loved ones scrambling for a Will that they cannot track down creates expensive headaches that are completely avoidable.

At Good Law, we focus on helping our clients write their Wills the right way. That means ensuring that they’re drafted in accordance with the latest legal standards, that you’re well enough and have capacity to give instructions, that they’re properly signed by two witnesses, and that the original Will is properly secure so that your descendants don’t need to go to battle over its validity after you’re gone.

We regularly support clients throughout the Windsor-Essex and Chatham-Kent regions in making their wills. Contact us today to get the process started.