Do you need to apply for a Certificate of Appointment of Estate Trustee (probate) but can only locate a “copy” of the deceased’s Will?
Under Rule 74.04(1) under the Ontario Rules of Civil Procedure, the “original” Will must be submitted with the application for the Certificate of Appointment of Estate Trustee with a Will. If the person(s) applying to be appointed the estate trustee cannot locate the original of the Will and only has a copy of the Will, a Form 14E Notice of Application will need to be filed with the court (subject to a few exceptions).
The person applying to be the estate trustee or anyone with a financial interest in the estate would have to make an Application for directions under Rule 75.06 to have the copy of the Will proved as a valid testamentary document and the last Will of the deceased. The Will can be proved in “common” or “solemn” form. To prove the Will in solemn form, an application must be directed to a judge for a court order. Some examples of situations where an Application to Prove a Will in Solemn Form are required are: (1) only a copy of the Will can be located (the original has been lost or has been destroyed) or (2) both of the witnesses cannot be located and evidence as to the proper execution of the Will cannot be obtained. An Application to Prove the Will in Solemn Form can be cumbersome and requires evidence to rebut the presumption that the original Will cannot be located because it has actually been revoked by the deceased (and is therefore, no longer valid). If the original Will has been lost or destroyed, the consent of every person who has a financial interest in the estate is also required. If the consents cannot be obtained or the judge is not satisfied with the evidence submitted to the court, an Application or motion for directions would have to be brought to determine how the the lost or destroyed Will is to be proved, and a judge may make directions as to what evidence will be required.
It is important to ensure that your original Will is stored in a safe location and that the individuals who you have appointed as the estate trustees in your Will know not only where your original Will is located - but that they will be able to access the original Will following your death as well (ie. if the Will is stored in a safe).
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Werhun Law is a law firm located in Etobicoke serving the Greater Toronto Area. Werhun Law provides services primarily in residential and commercial real estate, mortgages, commercial leasing, and wills and estates. If you have any questions or are in need of legal services you can contact us at info@werhunlaw.com.
The information in this post is for general informational purposes only. It does not constitute legal advice and does not create a solicitor-client relationship.