If an original will cannot be found, can a copy of the will be used for probate instead?

  • When an original will has been lost, mislaid or destroyed or is not available, a copy of the will can be admitted to probate
  • When a will last known to be in the custody of the testator cannot be found on his death, there is a presumption that the testator destroyed it. 
  • This presumption can be rebutted by evidence, written or oral

Some of the factors considered by the courts in determining whether the presumption of destruction has been overcome are:

  • Whether the terms of the will were reasonable
  • Whether the testator continued to have good relationships with the beneficiaries of the will up to the date of death
  • Where personal effects of the deceased were destroyed before the search for the will being was done
  • The character of the deceased in taking care of personal effects
  • Whether there were any gifts before death that support or contradict the terms of the copy sought to be probated
  • Statements made by the testator which confirm or contradict the terms of the will
  • Whether the testator was the type to store valuable papers, and had a safe place to store them
  • Whether there is evidence that the testator understood the consequences of not having a will and the effects of intestacy
  • Whether the testator said he had a will

 

Each case depends on its particular facts.

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