Can't Find the Original Will? What Happens in BC

You have been named executor, and you have a photocopy or a scan of the will, but the signed original is nowhere to be found. It is a more common problem than people expect, and it changes how the estate has to be handled.

In British Columbia, a missing original raises a legal question, not just a paperwork one: did the will-maker destroy it on purpose? This guide explains how that question is approached, where to look, and how a copy can sometimes still be admitted to probate.

Why the original matters

A probate application normally starts with the signed original. Rule 25-3 of the Supreme Court Civil Rules requires the applicant to file the originally signed version of a physical will. Only if the original does not exist or is not available may a copy be filed instead, and a copy brings extra scrutiny with it.

The reason is revocation. Under section 55 of the Wills, Estates and Succession Act (WESA), a will can be revoked by the will-maker, or someone in their presence and at their direction, burning, tearing or otherwise destroying it with the intention of revoking it. A missing original might have been misplaced, or it might have been deliberately destroyed. The court has to be satisfied which is more likely before it acts on a copy.

Search thoroughly before you assume it is lost

Many "lost" wills turn up once the search is organized. Keep a written record of where you looked, who you asked and when, because that record may later become part of your evidence.

• The lawyer or notary who prepared it. Many will-makers leave the signed original with the office that drafted it. If the firm has closed or merged, the Law Society of British Columbia may be able to say where its files went.
• A wills notice search. WESA allows a person to file a notice with the Vital Statistics Agency saying where their will is kept. After a death, anyone with a death certificate can apply for a search. The notice gives the date and location of the will, not a copy of it, and the search certificate is required with the probate application anyway, so order it early.
• Home, safety deposit box and papers. Check filing cabinets, safes, the deceased's financial institution and anyone who helped manage their affairs, including an attorney under a power of attorney.
• Someone who refuses to hand it over. If a person has the will and will not produce it, Rule 25-12 lets you ask the registry for a subpoena requiring them to deliver it to the court registry, or to swear that they do not have it.

The presumption that a missing will was revoked

Courts have long applied a common-law presumption: if a will was last known to be in the will-maker's own possession and cannot be found after death, it is presumed that the will-maker destroyed it intending to revoke it. The presumption is a starting point, not the end of the analysis. It can be rebutted with evidence that points the other way.

Evidence that can help displace the presumption includes:

• Where the original was kept. If it was held by a lawyer, a family member or anyone other than the will-maker, the presumption may not apply at all.
• What happened to the will-maker's papers. A move into care, a flood or fire, or a home cleared out by others can explain an original going missing without any intention to revoke.
• What the will-maker said and did. Statements close to death confirming the will, or conduct consistent with it, can point away from revocation.
• Who benefits. The court looks at whether the will-maker had any reason to change their plans, and whether anyone with access to the papers stood to gain if the will disappeared.

This is a fact-heavy question. Affidavits need to come from people with first-hand knowledge, and family members who would take more if the will is treated as revoked may oppose the application.

How a copy is proved for probate

If you apply with a copy, the usual notice rules still apply. Under Rule 25-2, you deliver the notice of proposed application (Form P1) and a copy of the will to the executors, the beneficiaries and the people who would inherit if there were no will. Those intestate heirs matter here, because they are the people most likely to argue the will was revoked.

The registrar may decline to issue a grant on a copy without a court order. Rule 25-9 then allows the applicant to apply to the court, which can approve the application, direct that the will be proved in solemn form, or set the matter down for a hearing with directions. A contested case may become formal estate litigation, which is why early evidence-gathering matters. Our overview of estate disputes in BC explains how those proceedings are structured.

Section 58 of WESA, the court's power to give effect to a document that represents a deceased person's testamentary intentions even where formal requirements were not met, may also be relevant in some cases, for example where the surviving document is unsigned or incomplete. Whether it helps depends heavily on the facts.

If the will is treated as revoked

If the presumption is not rebutted, the missing will has no effect. That does not automatically bring back an earlier will: under section 57 of WESA, a revoked will is revived only by a later will showing that intention, or by a court order under section 58. Depending on what other documents exist, the estate may pass under an earlier will that was never revoked, or under the intestacy rules. Our guide to dying without a will in BC explains who inherits in that case.

Practical steps for an executor holding only a copy

• Do not distribute anything. Secure assets and wait until the court has accepted a will or a grant has issued.
• Preserve the copy. Keep the copy exactly as found, including any notes, staples or envelope, and record where it came from.
• Build the record early. Identify the drafting lawyer, the witnesses and anyone who knew where the original was kept while memories are fresh.
• Expect a longer timeline. An application that needs a court order takes longer than a routine one. Our article on applying for probate in BC sets out the standard steps this process adds to.

Only have a copy of the will? Get advice before you apply

Our probate and estate lawyers can help you organize the search, assess the evidence about the missing original, and prepare the probate application or court application needed to prove a copy.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.