Lost and Destroyed Wills: Procedural Considerations
Earlier this week, I blogged about a recent decision of the Ontario Superior Court of Justice that highlighted the factors the Court will consider when a party seeks to rebut the presumption of revocation when a testator’s Will cannot be located upon death.
Today, I will be highlighting the litigation procedure in Ontario for an Application to prove a lost or destroyed Will.
Pursuant to Rule 75.02 of the Rules of Civil Procedure, the validity and contents of a Will that has been lost or destroyed must be proved by way of an Application before the Court.
As noted in my previous blog post, the party who seeks to prove a lost Will bears the onus to:
- prove due execution of the Will;
- provide particulars tracing possession of the Will to the date of the testator’s death;
- provide proof of the contents of the Will; and
- rebut the presumption that the Will was destroyed by the testator with the intention to revoke it.
However, Rule 75.02(a) provides that a Will may be proven by way of affidavit evidence only if all persons with a financial interest in the testator’s estate consent to the proof. If the appropriate consents can be obtained, the validity and the contents of the Will can be proved without the need for Court appearances.
It is important to note that Rule 75.02(a) appears to require the agreement and consent of all persons with a financial interest. In addition, it is strongly recommended that a person contemplating an Application pursuant to Rule 75.02 obtain legal advice as to who may have a financial interest in the Estate.
For instance, if the result of the Will not being proved would be an intestacy, careful consideration should be given to the consents required from any intestate heirs. Legal advice should also be obtained if there are persons with a financial interest who are not sui juris, such as minors or persons under disability.
If all of the individuals with a financial interest do not consent to proof, Rule 75.02(b) states that the Application will proceed “in the manner provided by the court in an order giving directions made under rule 75.06.” Rule 75.06 provides the Court with the ability to direct the procedural conduct of the litigation.
Thank you for reading,
Umair Abdul Qadir