How to Search for a Missing Will After a Death in BC

After a death, many families discover that nobody knows where the will is. It may be in a drawer, with a lawyer, in a safe deposit box, or it may not exist at all. Not knowing is stressful, and it can hold up everything else you need to do as the person looking after the estate.

This article explains how the search generally works in British Columbia, what places are worth checking, and what happens if the original will never turns up. It is general information, not advice on your particular family.

This article covers the law of British Columbia.

Why the search is a required step

When someone applies to the Supreme Court of British Columbia for a grant of probate or administration, a search for a wills notice has to be submitted with the application. This is so even if you believe you are holding the original last will.

The filing package includes two copies of a wills notice search certificate from Vital Statistics. What the search turns up in your situation depends on the facts, so it is worth confirming with a lawyer. The search is a separate requirement from having the will in hand, which is why it applies even when you believe you hold the original.

Places to look before and alongside the formal search

The Vital Statistics certificate is only one tool. A practical search usually covers the places people commonly keep important papers.

• The deceased's home: desk, filing cabinets, fireproof boxes, and any home office.
• A safe deposit box at their bank (the bank may have its own rules about access, so ask what it needs from you).
• The lawyer or notary who may have prepared the will, and any firm they used for other legal work.
• Relatives, close friends, or the named executor, who may have been given a copy or the original.
• Their financial advisor, accountant, or insurance agent.
• Emails, phone contacts, and cloud storage, which sometimes hold a scanned copy or a lawyer's name.

Keep a simple written record of who you contacted and what each person said. That record can be useful later if the court or other family members ask how thorough the search was.

What if only a copy turns up?

For a physical will signed with witnesses present, the originally signed will is what is normally filed with the court. If the original is unavailable, a physical copy or a PDF copy may be filed instead.

Whether a copy will be accepted in your situation can depend on the facts, such as why the original is missing. That is a good point to speak with a lawyer, because the court has to be satisfied that the will is real, free of fraud or undue influence, and the last will the person made.

What happens if no will is found

If there is no will, or the will names no executor, or the named executors cannot or will not act, a person applies for a grant of administration instead of a grant of probate. It gives that person authority to administer the estate.

When there is no will, the law sets the order of who may apply. The spouse or the spouse's nominee comes first. Next is a child with the consent of a majority of the children, then a nominee of such a child, then a child without majority consent, and then other intestate successors. Last is any other person the court considers appropriate.

If there is a will but no executor can act, a beneficiary with the consent of beneficiaries holding a majority in interest comes first, then a nominee, then other beneficiaries, then any person the court appoints.

One more point: if the will-maker and their spouse stopped being spouses after the will was made, a gift or appointment to that spouse, including as executor, is revoked, and a later reconciliation does not revive it. A found will may therefore not work exactly as written.

What to do next

• Search the home and likely storage places, and write down what you check.
• Contact the deceased's lawyer, notary, bank, and advisors.
• Ask Vital Statistics for the wills notice search needed for the application.
• Check the date of death. Deaths before March 31, 2014 fall under the old laws.
• If nothing turns up, speak with a lawyer about applying for a grant of administration or filing a copy.

You do not need a lawyer to apply for a grant in British Columbia, but a missing or disputed will is a situation where advice can help you avoid costly mistakes.

Frequently asked questions