Lost Wills, Will Registries and the new Canada Will Registry
There is no shortage of complications, stress and potential expense that can occur when a will cannot be located following a party’s death. This is particularly true in Ontario, where the law provides for a presumption of revocation with respect to lost wills: namely, a will will be presumed to be revoked by destruction when the original will cannot be located after the death of the deceased.
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 the Ontario Court of Appeal held in Sorkos v Cowderoy,  O.J. No. 3652, a 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.
As we have blogged on previously, will registries are a mechanism which may help parties avoid a missing will debacle altogether. One such registry is the new Canada Will Registry, launched this past May 2019 by NoticeConnect. While NoticeConnect has previously specialized in assisting estate practitioners and trustees to advertise for creditors, and to publish notices looking for missing wills, their blog advises that the development of the Canada Will Registry will aim to provide a comprehensive, Canada-wide system for finding wills.
According to the NoticeConnect website, the Canada Will Registry will enable lawyers and firms to upload the basic information about wills they are storing, and to organize, transfer and receive related digital records. Once the Canada Will Registry amasses 100,000 wills, the program will enable the ability for will searches to be submitted.
When someone is searching for a will, NoticeConnect will publish a Knowledge of a Will notice and its system will compare and cross-reference the search terms against the system’s registered wills. If the terms match with a registered will, the registry will notify the registering firm or company, and provide them with the searcher’s contact information. The platform is used by lawyers, trustees, banks, and government.
It will be interesting to see how technology will continue to develop and assist the legal community, and how effective the advancement of will registries will be in combating the challenges of lost or missing wills.
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