Digging Around for the Will

March 5, 2015 Hull & Hull LLP In the News, Wills Tags: , , , 0 Comments

In a grisly news story, it was reported that a woman recently pleaded guilty to digging up her late father’s casket to look for a will.

The late Eddie Nash died in 2004.  He had prepared a will in 1995.  Unfortunately, one of his daughters felt that she didn’t receive a fair share of her father’s property after he died, the Huffington Post reported.  She believed for years that her sister had hidden a will from her.  The daughter, together with several other participants, proceeded to exhume Mr. Nash’s grave to look for the document.  No will was found.

The daughter was to be tried in March, but instead pleaded guilty to criminal mischief, interference with a cemetery, conspiracy and abuse of a corpse.  She has not yet been sentenced.  Two of the other participants pleaded guilty, and a third has been acquitted.

Though searching a grave is certainly an unusual step to take, the problem of having to locate a will that is believed to exist is quite common.  There are a number of places and resources that might be a good place to start.

Many wills are found by placing ads in legal publications like the Ontario Reports.  Placing classified ads in local newspapers can also yield results.  Many law firms that store wills will check these ads on a regular basis, looking for people who are seeking wills that might be in their possession.

Another good place to look is in the testator’s safety deposit box, if it can be accessed.  Some people store their wills alongside jewellery and other valuables.

The court is another resource.  Under rule 74.02 of the Rules of Civil Procedure, the court maintains a bank of wills and codicils that have been deposited for safekeeping.  After the death of the testator, any person can copy or inspect the will after the testator’s death upon filing a written request with the testator’s date of birth and a death certificate.  Depositing a will with the court is not required and many testators choose not to do so, but sometimes the court has a will on file.

Some private will registries exist as well.  A service called “Will Finder” is an example of this.  It may be worth checking with these services if a will cannot be located otherwise.

Asking people who were close to the deceased might be helpful.  Friends or family members may have some knowledge, as may lawyers, bankers, accountants, and other professionals who dealt with the deceased.  If the deceased had a guardian or an attorney for property, he or she may know if there is a will.

If all else fails, a motion can be brought under section 9 of the Estates Act to order any person to produce a testamentary document.  If there are reasonable grounds to believe that someone has knowledge of a will, that person can be examined under this rule.

Finding a will that is believed to exist can be a challenge.  There are a number of things that you can try and tools that you can use to locate a will before resorting to a shovel.

Josh Eisen

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