Wednesday, June 4, 2014
Can I probate a copy of the will, since I can't find the original?
Posted by Lynne Butler
"Can a person probate a copy of a will that is not notarized? There is no original to be found."
Notarizing really doesn't have anything to do with the answer to your question. Lawyers who prepare wills for a client prepare only one original. They usually provide the client with a copy of the will and keep a copy themselves on the client's file. The copies are almost never notarized, as notarizing would not in any way add to the validity of the copy.
When individuals prepare wills for themselves without the help of a lawyer, the instructions should say that the person should only sign one original.
The general rule for probate of a will is that you must have the original document to submit to the court. This rule is supported by practical reasons that have to do with preserving the intentions of the testator (i.e. the person whose will it is) and preventing confusion about the validity of the will.
While probating a copy of the will is not impossible, it isn't easy. You cannot simply send it to the probate court with the usual documents as if it were an original. This is because there is a presumption in wills law that if the original will cannot be found, it's because the testator destroyed it intentionally and did not want it to be his or her will. This is obviously going to work against you.
You basically have two options. The first is to try to overcome that presumption about the destruction of the will. You will have to convince a judge that the copy you have is in fact a copy of a valid (and not destroyed) will. The evidence you might use could include testimony about conversations the deceased had with the family, or correspondence about the will with the deceased's lawyer.
The second option is to apply to the court to appoint an administrator. Rather than proceed as if there were no will, you could ask the court to appoint an administrator with will annexed. This basically means an administrator who is going to follow the will even though the will may not be legally binding. As with any court application, you can't be sure that you will get what you want, but having the support of other members of the family would be helpful to you.
Making a decision about which of these options to follow will take some thought. A key consideration should be the intestacy laws in your province. As you want to carry out the deceased's wishes, you need to know whether those wishes are substantially different from what would happen under local intestacy law. If the will is not valid and the judge appoints an administrator without ordering him or her to follow the will, that administrator will have to follow local intestacy law. If the will and the intestacy law are the same, this will be less of a concern.
This is definitely something you might want to talk over with a lawyer near you who is very experienced in wills law. Take the copy of the will with you, and talk through the options.