Estate planning is one of the most important steps you can take to protect your assets and ensure your wishes are followed after you pass away. A key component of estate planning is your will, which sets out the way you would like your property to be distributed to your loved ones when you’re no longer around. However, what happens to your belongings when your will is lost or misplaced? Even if you did not intend to revoke it, a lost will can present significant challenges for your beneficiaries or surviving family when it comes time to administer your estate.
At Verhaeghe Law, our Edmonton wills and estates lawyers have experience drafting and executing wills, trusts, and many other important estate planning documents. We can help you ensure your will is legally enforceable and recorded. If your loved one’s will has been lost or misplaced, our lawyers can help you and your family review your legal options for recovery. To discuss your situation, contact our lawyers today.
How Are Lost Wills Treated Under Alberta Law?
Individuals are responsible for the safekeeping of their estate planning documents. However, accidents happen and wills may get lost, misplaced, or even stolen. In Alberta, natural disasters like forest fires and floods make important personal property particularly vulnerable to loss or destruction.
If a will is lost or misplaced at the time of the will-maker’s (testator’s) death, the law will automatically presume that it was intentionally revoked. This is because, under the Alberta Wills and Succession Act, a will can be rightfully revoked if the creator destroys it. In this case, it will be as if the testator had no will, and probate will proceed according to intestacy laws.
Intestate succession refers to situations where the Alberta government decides how the deceased’s assets will be distributed upon their passing. Generally, Alberta utilizes a parentelic system of inheritance to determine the rights of family members to the deceased’s assets. Intestate succession normally occurs when no valid will exists after an individual passes away. This process may be undesirable for many families, as the deceased’s property will be distributed according to the laws of intestacy and not the testator’s wishes.
However, family members are legally entitled to rebut the presumption of the intentional destruction of a will. To do so, they must prove to the Court that the will was lost due to circumstances beyond the testator’s control, and not intentionally revoked.
Steps You Can Take if a Will is Lost or Misplaced
Although the law can be complicated if a will has been lost, misplaced, or stolen, there are steps you can take to address the situation. First and foremost, it is important for your family members and the testator themself to take preventative measures. You or the will-maker should consider:
- Multiple Storage Locations: The original will (and signed copies) should be stored in more than one safe place. This might include a bank-safe deposit box and a secure home safe.
- Inform Neutral Parties: You or the testator can inform a trusted third party, or multiple parties, about the location of the will. This will reduce the likelihood of it being lost or misplaced in the future.
- Professional Services: Many law firms offer will storage or vault services for clients’ important documents. They can maintain copies that indicate where the original is kept.
If a will is lost or misplaced after the passing of the testator, there are steps you can take as a surviving relative to administer the estate according to the wishes outlined in the lost will. In Cordell v. Shiels Estate, the Court in Alberta decided that a lost will (or codicil) can be proven and probated when the following conditions are met:
- Due Execution: You must be able to prove that the testator signed their will and approved of its contents before it was lost, misplaced, or stolen.
- Chain of Possession: You must demonstrate that the testator held the will in their possession up until their death. You’ll need to provide evidence of its location or custody history.
- Rebutting the Destruction Presumption: You will need to show evidence that counters the presumption of intentional destruction. This can be difficult, as a lost will is automatically presumed to have been intentionally destroyed.
- Proof of the Will’s Contents: You can utilize parol evidence or reliable witness testimony to establish the full and accurate contents of the will that has been lost.
This process can be lengthy, expensive, and tedious. You and your lawyer will need to collect witness statements, photographs, and any other correspondence that corroborates the testator’s intentions and the existence of the will.
If you are able to secure a photocopy or digital record that reflects the contents of the lost original will, this can also help your case. For example, in Neufeld v. Neufeld (2019), the Alberta Court of Appeal decided that an unsigned copy of a 1988 will could be given a grant of probate.
If you are a beneficiary, executor, or trustee dealing with the implications of a lost or misplaced will, it is recommended that you seek legal counsel as soon as possible. An experienced wills and estates lawyer will be able to help you compile all the evidence necessary to submit a robust application to probate.
Dealing With a Lost or Misplaced Will? Speak With Our Edmonton Wills and Estates Lawyers Today
Probate and estate administration are already complex processes under normal circumstances. When the will in question has been lost, misplaced, or stolen, the situation can become even more complicated. Although obtaining a grant of probate for a lost will can be difficult, it is important that you know there are legal options available to you and your family.
At Verhaeghe Law, our Edmonton wills and estates lawyers are available to help with all of your estate planning, administration, and probate needs. Whether you need help creating a new will and keeping it safe, or you are a beneficiary looking into probate after the passing of a loved one, we can assist. To discuss the details of your situation, schedule a consultation with our legal team today.