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Sunday, September 20, 2009

Who is entitled to see your Will?

During your lifetime, you are entitled to show your Will to anyone you like, but you are also entitled to keep it private. You should either give the executor named in your Will a copy of the Will, or at least let him or her know where the original Will is kept. Other than your executor, there may not be anyone who needs to know in advance what is in your Will.

After you have passed away, the executor will use the original Will to apply for probate, if necessary, and if so, the original Will is filed at the court. When a person passes away, it's quite common for family members or close friends to ask whether they are named in the Will. I've often been approached by individuals who are angry or insulted that the executor won't let them see the Will to find out whether they are beneficiaries. I'm always surprised that people should be so angry that they are not allowed to see private papers, even though the executor has told them they are not beneficiaries.

Unfortunately for those who are curious, the executor is entitled, in fact is expected, to maintain the privacy of the deceased person. The Will is a private document and should not be shown to everyone who expresses an interest in its contents, regardless of whether that person wonders if he or she is a beneficiary. In Alberta, everyone who is a beneficiary of an estate will, at the time probate is applied for, receive a registered letter advising them of the gift left to them under the Will. Those who are going to inherit a share of the residue of the estate will also get a photocopy of the Will and a photocopy of everything that was filed at the court. Beneficiaries who are going to inherit a specific item or a specific sum of money will get the notice but will not get a copy of the whole Will.

Occasionally, an individual will have a reasonable expectation of being a beneficiary but has not received a notice. For example, the person might have been told by the person who is now deceased that he or she would be a beneficiary. Or, the person might have a copy of an earlier Will of the deceased, in which the person was named as a beneficiary. When I've been hired in that situation, I have written a letter on behalf of the person, asking the executor whether my client was a beneficiary and explaining that we believed there was good reason for asking. Even then, we might not be able to see the actual Will, though we will generally receive an answer because the executor doesn't want an uneccessary lawsuit.

The fact that you are related to the deceased person is not in itself a reason to allow you to see the deceased's Will.

18 comments:

  1. Hi Lynne,
    I am the executor of a late testatrix (T) in Ontario. I am trying to get to the bottom of whether I am required to produce the primary will of the T to the T's daughter, who has no interest in it and is not a beneficiary, even though the daughter IS a beneficiary of the estate generally (under the secondary will) and even though she is the daughter of the deceased.
    I would really appreciate any direction! Thanks.

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  2. Hi. I am executor of a Will in Ontario and have given copies to all beneficiaries named in it. there is a first tier of beneficiaries who have life interest in the estate. Once the last of them dies, then there is a second tier of beneficiaries. They have asked for a bookkeeping of all financials of the current estate. Are the second tier beneficiaries entitle to a copy of the financial records of the estate BEFORE the first tier are deceased? there may not be any money left for that second tier at the death of the first tier beneficiaries.

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  3. I'm not sure I find this good or not good. I live in the US but am Canadian, my father passed, his will apparently read, if his girlfriend passed, everything to be divided between his children. No names were mentioned, just children. so there is 3 of us. 2 of us have asked for a copy of the will several times, and have not received it, we have been declined. Now, if we want to see or receive a copy, we have to put forward 1500.00 to an attorney to get it. What would be the purpose of a will and a law of protection if they just simply don't follow any rules

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    1. The fact that you can't get a copy of the will doesn't mean that the will has no purpose.

      You haven't said who the executor is, but I assume it's not his girlfriend since you're only a beneficiary if she predeceased your father (according to what you said above). However as a child of the deceased you're what we would call a "logical beneficiary", or someone who should reasonably expect to be included in his will. Therefore if you have to force the executor through the courts to release a copy of the will to you, I would expect the court to direct that executor to pay your legal costs as punishment for being so obstructive.

      Yes, you have to pay to enforce your rights in this society. That's a big drawback for plenty of people, I realize.

      Have you tried a search of the probate court? Wills become public documents once they are submitted for probate. I don't know for sure that your father's will went to probate but if he owned a home or a bit of money, it probably did.

      Lynne

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  4. Hello Lynne,

    My question is with regards to my dad's will.
    My Mother is Executor, my sister is the secondary executor. My Mother was not given my dad's will after my his passing. My Mom asked for the will, my sister gave her a copy... which was over one month after Dad's passing.
    Mom and I just found out that Mom - being executor - should have the original will and should administer the will. I took my Mom to the office of the lawyer who made the will and he left us waiting for close to an hour, while his secretary "looked for the original copy." An hour later, the lawyer came out of his office and told us "we can't find the original because it isn't here." He went on to tell us that he no longer keeps originals - since 3-4 years ago, because people were always asking for them. We have since discovered that my sister has the original copy of the will. What should be done?

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    1. When you say that your sister is the "secondary" executor, are you saying that she is the alternate who is named to take over if the first-named executor cannot or will not do it? Or do you mean that she is a co-executor along with your mom?

      If your mom is the executor - and the only executor - the law is quite clear that she is entitled to have the original will. Your sister has no legal right to withhold it and you haven't said what her reason is for not handing it over.

      Your mother should clearly and firmly ask that the original will be given to her immediately. Your sister may not be aware that your mom must have the original, since you and your mom didn't know either. Your sister might not actually be refusing to give it to her; she might think she's keeping it safe.

      If, however, it turns out that for some reason your sister is just refusing to give the will to your mom, she might consider hiring a lawyer to make a formal demand of your sister for the will, explaining that the law requires her to relinquish it. If you don't want to use the same lawyer who drafted the will, you don't have to.

      Lynne

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  5. I a one of 7 beneficiaries to a relatives will. My aunt who has children who are also beneficiaries is the executor. We have received a partial payment of the estate and are awaiting government clearance to receive the rest. It is my understanding that I should receive a copy of the will anf have to sign some paperwork at the end however I live in a different province. How will this work?

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    1. Living in another province will have no bearing on this.

      If you are a residuary beneficiary of the estate then yes, you should receive a copy of the will. You said that you expect to receive paperwork and a release. Again, those things are normally provided to residuary beneficiaries only so if you have been told by the executor that those things will be sent to you then I can safely assume that you are a residuary beneficiary.

      Normally a residuary beneficiary would have received a copy of the will long before now, but I suppose it's better to get one at the end of the estate than not to get one at all.

      When the executor has received the tax clearance certificate, he or she will send you an accounting that includes a statement of all transactions he or she has handled for the estate, including all bills paid, all accounts cashed in, all assets sold, all tax paid, etc. Along with that will be a release, which you will sign if you are okay with all of the work done by the executor. Once you've signed it you send it back and you get a cheque. That's the basics of "how it works".

      Lynne

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  6. My husbands mother passed away in February and he is only finding out about it now (November) due to internet seaching. His sister was POA and they haven't spoken in over 4 years. He's not sure if he is in his mothers will as the sister would make sure he wasn't notified. How can he get a copy of the will?

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    1. Your husband could try a search at the court nearest where his mother lived. It will be the higher court, so either Supreme Court or Queen's Bench, depending on the province she lived in. In some places this search can be done online. If he lives close enough to go in person, that would work, but if not he should call and ask for the probate clerk and arrange for a search. When he searches, he should ask for "all documents" as opposed to asking for the will, so that he gets the inventory etc.

      This is the only public source of wills records. If the will has not been sent for probate then it cannot be obtained this way.

      If the search turns up no results and there are no other family members willing to share a copy, your husband will have to go through the sister (I assume she is the executor). If she won't co-operate, it may end up in a lawsuit.

      Keep in mind though, that since your husband did not contact his mother for 9 months at a time, she may well have written him out of the will. Plenty of parents write out kids who don't stay in touch.

      Lynne

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  7. Hi Lynne,

    There are 5 of us children's. My Mom has Alzheimer's and is at the end of her life. After my dad died 12 years ago, my Mom made a new will naming me and my sister as co executors of her will. My brother was living with my Mom in her house to enable her to stay at home prior to her having to go into a long term facility 3 years ago and when he left her house in a huff, he took the will and my Dad's ashes along with almost everything he could get his hands on. We asked him for the will and he refused to give it to us, so do we have any legal right to get the will from him?

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  8. If the will states that a brother and sister are to split what ever is left,, is the executives to give a copy to one of the siblings as the other is a executive? Also for a small amt of money do you need lawyer or have probate? We are talking 15000$ appropriate?
    Bikergirl25@gmail.com

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    1. Hi Gigi,
      I am not sure I understand the first part of your question, but I think you're asking whether both the brother and the sister should have a copy of the will. Yes, both of them are entitled to have a copy if they are splitting the estate. If one sibling is the executor, he or she should give the other one a copy. There is no good reason to refuse, and he or she can be forced by the court if necessary to give a copy. I don't know why executors get so idiotic on this question. I mean, why withhold something you know damn well you are required to give and can be forced by law to give? It just makes no sense.

      As to your second question, no you are not required to use a lawyer. If you feel you can do it yourself, then you are entitled to do so. I don't know which province you're in, but I have produced do-it-yourself probate guides for Alberta and Newfoundland. You can get the Alberta one at www.self-counsel.com and the Newfoundland one at www.newfoundlandlawbooks.com. If you are in another province, check the Self-Counsel Press site, since I know they have kits for BC and Ontario, and possibly other provinces too. You can get the forms you need from the Queen's Printer in each province but they don't come with any instructions.

      Lynne

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  9. We are not have probate! Ty for your help.

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  10. Where a will distributes "shares" to various beneficiaries, a) Does each beneficiary receive a full copy of the will? and b) can the names of other beneficiaries be blacked out to preserve their privacy?
    Thanks !

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    1. I had to think about the second part of your question a bit because nobody has ever asked me that before. The general rule is that the residuary beneficiaries - i.e. those who are given a "share" - are entitled to see the entire will and the entire accounting. So on the face of it, the answer should be that you cannot black out names. However, thinking about WHY that rule exists, it's so that the beneficiaries are able to know exactly what they are supposed to inherit and how the estate is being managed. In most case, blacking out a name wouldn't affect that ability to determine the inheritance.

      Without actually researching the law on this question, I would say that if it came right down to a court challenge on whether you could black out names, the court would likely say that you cannot black out names based on the right to know what's going on the estate. Keep in mind that sometimes the identity of the other beneficiaries could be relevant, such as if that beneficiary were a minor or a handicapped child or a spouse. If you believe that the identity of any given beneficiary in no way affects the rights of the others, you could try blacking the names out. But I'd be cautious about that since if things fall apart later because someone wasn't aware of possible challenges or other issues, you could be at fault for concealing information.

      Lynne

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  11. My father-in-law passed away in 2017 and is survived by his wife and two sons(one son is my husband). My husband doesn't know for sure who are the executors of his late father's Will and hasn't seen the will. My husband's brother seems to be taking charge of his late father's affairs but is not sharing any information with my husband except for saying that the Will will not be probated. How can my husband get a copy of the Will if it is not probated and if there is no Will on deposit at the local Ontario Court Register? Please advise. Thank you. Vivienne

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  12. Hello , I have a strange question for you about Wills and who has a right to demand a copy. I am the executor of my late mothers estate, she passed early in 2017 and her husband passed in 2009. When I went to her insurance broker to cancel her automotive insurance policy and presented the broker with an original death certificate from the funeral home ( on this document I was listed as 'son/executor', I was asked for a copy of the will before they would cancel the automotive policy, in fact they refused to cancel the policy without a copy of the will. Is this legal in Ontario? I did allow a copy of the front page of the will one month later as the estate could not keep paying for a policy but I needed to keep the home insurance policy which was combined.

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