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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.

43 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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    Replies
    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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    Replies
    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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    Replies
    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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    Replies
    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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    Replies
    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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    Replies
    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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  13. Hi Lynne

    My father passed away in early 2017, his best friend (executor) approached me after the funeral and said I am named many times in the will. He later said now this is confusing, my step mom has life assurance on the estate but everything is named to me and can't be touched, only the interest on investments and whatnot... the estate is very large with land holdings, investments, and property holdings. The will which I have not seen as he says I'm not allowed until probate is done he says states she holds everything until her passing then it is transferred. I am fine with that. My question is

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  14. He won't really give me any information and kinda dodges any questions I have, he is a nice guy and we're amicable but it's been over 6 months and I kinda just want to have this wrapped up for my own peace of mind. Should I seek legal assistance?

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  15. Hi, how can I find if I was named in a will of my late friend who lived in BC? I know that the house is being sold under probate. I have no idea who the executor is and live abroad. Many thanks!

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    Replies
    1. The easiest way is to contact the probate court nearest where your friend lived and do a search under his/her name. If the will has been sent to probate, it is now a public record and you can request a copy.

      Lynne

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  16. Hi Lynne,
    My sister in law has not children,and has not included all nephews and nieces and living brothers in the will. Do the not included need to recieve a copy of the will?

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  17. I live in NB. I was informed I was a beneficiary on the will. My Aunt died the end of 2016. I was contacted Feb 2017. I have since had 2 calls stating that the taxes have been paid and they just had to sign off(that was 2 months ago.Still nothing. Also the first time I was contacted, they told me I was the only one listed on the will that didn't have a copy of the will and they were going to mail that out to me. I still have not received anything and the legal firm isn't returning my calls. Am I wrong to think this seems weird?

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  18. Hello Lynne,

    I came to know about you through this website and decided to seek your advice on some very important points. But before that I am explaining my actual situation and giving you all the info you may need to suggest me properly.

    I live in GTA, Ontario. My husband is 70 yrs old and I am 47 yrs. I am his second wife. My husband’s first wife passed away some years back due to cancer. He has two adult daughters who are well established in life with their professions. Both my husband and his daughters are Canadian citizen BUT I AM STILL NOT. I AM ON PERMANENT RESIDENT STATUS.

    My husband is not a wealthy man and he does not have vast property or assets at all. He has a survival job with minimum salary and has a condo in both of our names which is worth approximately 350,000 CAD but that is not paid off and mortgage payment is still there every month.

    He explained to me that once he passes away condo will automatically come to me as I am his legally married spouse and present condo is in joint name. So I will have the right to decide anything about the condo after he passes away. Even though when I was not convinced and felt insecure my husband made a WILL in 2016 giving me the right of being sole executor to decide about his property and assets. His daughters are left out from the will. Reason he said to me that he does not have enough property to give his daughters and he spent almost all of his early age vast income and savings to educate them and make them established in their lives. He has to keep something for his own survival and as I will be looking after him at his old age till his death I should get whatever he has now after he passes away on humanitarian ground as a survivor spouse of the deceased. BUT NOTHING IS MENTIONED IN THE WILL WHY HIS DAUGHTERS ARE LEFT OUT. THERE IS NO BENEFICIARY NAME ALSO MENTIONED ANYWHERE IN THE WILL. As I don’t have any family or friend in Canada who will give me advice or stand for my help if anything happens to my husband suddenly I still feel insecure. When I went through the estate law in this website and read about several cases it made me feel more insecure. I found somewhere that adult children can always contest a will if they want. I am fearing because of the relationship between father and daughters they will obviously contest the will as they never accepted their father’s second marriage.
    Now my questions are:
    1) According to Ontario Family Law/ Estate Law can my husband’s daughters contest the will after he passes away????
    2) If they can contest is there any possibility of winning the case????
    3) If they win the case how much can they claim????
    4) If my husband makes the condo document fully in my name not in joint name can there be still a claim from his daughters side????

    One vital information about the will is it was done by professional lawyer and lawyer and his assistant signed as witnesses.

    I didn’t have any wish to come between my husband and his daughters but unfortunately I am already in. I never liked in my life to be in family feud/dispute regarding money and property. But now for my own survival ground I have to think how I can avoid any family dispute with my husband’s daughters regarding little property my husband will be leaving at his death. If you can please point out anything important ( adding any clause in the will or mentioning clearly something) which can save me fighting against my husband’s daughters and resist the will from going to court to be contested. I really don’t know anything about Canadian Family Law. So please help me. If you give me your email then I can further discuss some more points which I don’t want to discuss in public forum like this as it is too personal.
    With best wishes








    With best wishes


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  19. Hi, thank you for your time! My mother died in June 2017. I am the only living next of kin. I received a copy of her Will signed in 1985 via e-mail from a lawyer who saw the Obituary. Then a woman from TD Wealth Management emailed to say that they have an original copy of a Will dated 1990. They will only tell me that I am a legacy beneficiary, nothing else and refuse to give me a copy of the Will. My mother was not of sound mind in 1990. She was living in a women's shelter as she believed that my father was trying to kill her -yes very long sad story. TD Wealth Management refuse to give me a copy of the Will in order for me to challenge it. If you could advise me I would appreciate it -thanks so much!

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  20. What if executors forget to follow up with rev cans for clearance certificate then the estate account goes dormant..7 yrs later we beneficiaries find out as 1 was minor so it was to be hekd5in trust. Now bank account went into dormancy and apparently they over paid the beneficiaries $1300 each as they made a mistake and now want it back. An abundance of errors ..very upset daughter's.. ..

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    1. I sure don't blame you for being upset. Plenty of executors make mistakes from time to time, as they are as human as the rest of us, but rarely does anyone make that many mistakes on one estate. What a mess.

      The executors are executors for life, so it's up to them to clean this up. It sounds as though they are in the middle of doing that. They may well be able to recover the dormant bank account, and they can also request the tax clearance certificate if they want to. Getting that certificate is not legally mandatory.

      As for them overpaying $1300, I assume they want it back because they want to cover the cost of finishing the estate. You can return it to them if you feel that is fair but they cannot force you to give it back.They're upset because if you don't give it back, they have to come up with the money out of their own pockets. That's the risk they take as executors.

      I don't know how much sympathy I really feel for them, to be honest. To forget for 7 full years that they are in the middle of an estate? That's a bit much.

      Lynne

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  21. Does a lawyer have the right to withhold the original will from the executor of an estate? I live in New Brunswick and they only want to give me a copy. Do I have the right to demand the original?

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    1. Hi Sam,
      Has the owner of the will passed away? Are you the only named executor? If so, and if you have a death certificate to prove his death, then the firm should release the original will to you.

      Lynne

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  22. Greetings Lynne

    My father passed away several years ago and prior to his death he became very sick. Prior to his illness he had a Will. My sister and I are estranged. When my father became very sick my sister had a capacity assessment performed on my father which resulted in a finding of him being unable to manage his financial affairs. During this time my sister persuaded my father to revise his Will and exclude me. She became the executrix of the revised Will and I received no proceeds from my father's estate. To date I have never seen the the first or second Will. Shortly after my father's death I received an offer letter from my sister's lawyer for a trivial amount of money from one of my father's smaller life insurance policies provided I agreed to sign a contract to release and forever discharge her from all matters of action, suits or claims either by me or my successors. I refused to sign and never heard from her or her lawyer again. I believe my father's original Will would invalidate a second Will if the second Will was created during a period when my father was incapable of managing his finances. Based on your experience what would you recommend I do to determine if my sister committed fraud? How can I find the first copy of my father's Will if a second one replaced it?

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    1. Once the second will was made, chances are good that the previous one was destroyed. Since new ones revoke old ones, they are usually not kept.

      Your sisters actions do not fall within the area of fraud, which is a criminal code violation. The proper step to take when someone influences a vulnerable person to make a will is to attack the will and ask the court to declare that it is invalid. It's probably too late for you to do that since you said that "several years" have passed.

      Lynne

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  23. Hello Lynne:

    To begin, I must say I really enjoy reading your blog when time permits--keep up the excellent work!

    My question is in regard to the statutory authority defining an executor's rights. Specifically, where is it stated that an executor is not obligated to show non-beneficiaries the will of a deceased?

    Thanks in advance.

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    Replies
    1. There is no statute that says that. You will have to look at the case law that develops and interprets the rights of residuary beneficiaries.

      Lynne

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  24. This comment has been removed by the author.

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  25. My grampa passed away suddenly.He wasn't my biological grampa but he's the only one I've ever known.My grandma passed away 8 years ago and since then my grandma's daughter's( my 2 aunts) have looked after his affairs and the one takes advantage of him.This particular aunt despises me because she has always been jealous of how much my Grampa doted on my children and I.My mother and I don't speak .in fact I speak to none of them.Theyve excluded my children and I from everything after my grandma passed.This upset my Grampa .He doesn't understand their ways.Familt is everything and my children are all that's left of my gramas bloodline.Kids are very important to him.He never had any and I was the closest thing to it along with my kids.We were very close and he adored my children.They are grown up and he has been there for Every event in their lives.We often had breakfast and talked about how they treat me and ignore my kids.It bothered him a lot.He died suddenly and if he only knew that they have yet to tell me that he died.Its been 2 weeks.I learned from my grampas best friend that my 2 aunt's are executors.They were executors of my gramas will and I later learned from my mother that they Did not handle things the way they should have.Ive never seen a copy of her will but i was told my name was in it.ive let that go.This can't happen again.I know my Grampa loved me and my kids to pieces.So much that I believe I would be in his will.I believe that my aunt's are going to exclude me and withhold info...how do I ensure this doesn't happen again?

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    1. Firstly, you need to know for sure whether he did actually include you or your kids in the will. Affection is one thing, but it doesn't necessarily translate into an inheritance.

      You start by asking the executors whether you are in the will. By the sound of it, they might give you a hard time. If they outright refuse to give you a copy, you can keep an eye on the probate court to see if they file your grampa's will for probate. If they do, you can get a copy from the registry because it's public once it's filed.

      If nothing is filed, you might consider hiring a lawyer to write a letter to the executors asking for a copy of the will. If you are named in the will and you have hired a lawyer, most executors won't lie outright and say you're not in the will.

      Keep in mind that if you are not named in the will, you are not entitled to see it.

      Lynne

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  26. HI there, my dad passed away and I have no copy of the will. I am the only remaining family member and I have seen the will which I'm entitled to. I'm trying to get out his investment from the bank and they want a copy of the will. His lawyer retired and the law society cannot get ahold of him ie. phone number and emails bounce back. Is there any other way I can get a copy of the will? I am in b.c.

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    Replies
    1. Make sure you check your dad's safe deposit box at the bank, if he had one (check everywhere he had an account).

      Also, BC has a wills registry that you can check. Here is the link: https://www2.gov.bc.ca/gov/content/life-events/death-and-bereavement/wills-registry

      Lynne

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    2. he had no safe deposit box the wills registry only shows when the will was filed, by who and that's it.......no details on the will. I have been since told I will need to take it to court and prove there are no other beneficiaries and that all of my other family members are dead

      Delete
  27. Hello.... any advice is appreciated. My mother passed away November 2017. She left a straight forward holographic will. It has been probated. My oldest brother was estranged from my mother for 20 plus years and was not in her will. I have not seen or spoken to him in that time. A few weeks ago he made contact. (June 2018) He is insisting on haviñg a copy of the will. "As my sibling you can just email a copy." We mentioned that a will was a private document and that he was not included as a beneficiary or even mentioned. Are we obligated to provide him one? He has threatened siblings at tjis point and we are concerned about safety and mental health.

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    Replies
    1. Since the will has been probated, he can get a copy directly from the court. There's no need for him to go around threatening people.

      Lynne

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