What to Do If the Original Will Cannot Be Found in Manitoba

When someone dies and the original will cannot be found, families often worry that the will is lost for good. The situation is stressful, but there are practical places to look and clear legal paths if the search fails.

This article explains how to search, what the court needs to see, and what generally happens if the will stays missing. Missing-will cases turn heavily on their facts, so a lawyer should look at yours.

This article covers the law of Manitoba.

Start with a careful search

Before assuming the will is gone, search methodically and write down where you looked.

• The deceased's home, including desks, filing cabinets and personal papers
• A safe deposit box (the bank can explain what access it allows)
• The lawyer, notary or accountant who may have prepared or stored the will
• Relatives, the named executor and close friends who may hold a copy or know where it is
• Recent moves, storage units or the papers of a spouse or partner

Also consider whether someone has already filed it. Probate Division record searches without a file number cost $10 for computerized records from 1984 and later, $20 for manual records before 1984 with name, place and date of death, or $40 by name only. Computerized probate records are viewable free in the Court Registry System.

What the court needs before granting probate

Letters probate may be granted under the court's seal after the will is proved, the deceased's place of abode at death is shown by affidavit, and the prescribed fees are paid. For a non-holograph will, the evidence must show valid execution and the testator's apparent soundness of mind and age. At least one witness's evidence is generally required, but if witnesses are dead, incompetent or cannot be found, the judge may accept other satisfactory evidence.

For a holograph (handwritten) will, the evidence must establish the testator's handwriting and signature and the will's validity. These rules show why evidence from witnesses, or proof of the testator's handwriting and signature for a holograph will, matters so much when a will is presented for probate.

Can a copy be probated?

Whether a photocopy or scanned copy can be accepted depends on the facts and on what the court is satisfied about. You should not assume it will be, and you should not assume it will not. A lawyer can tell you what evidence would be needed and whether the court's approval is required before you file.

If a copy does exist, keep it safe, do not alter it, and note who holds it. Caveats are dealt with under Rule 75 using Form 75A.

What happens if the will stays missing

If no valid will can be proved, the estate may have to be handled as if there is no will. Letters of administration are the alternative grant where there is no will or no executor able or willing to act, and the court appoints the administrator rather than granting probate to a named executor.

An administrator must give a bond to the judge, which, unless reduced, must be double the sworn value of the property covered by the grant. If all beneficiaries are capable adults who consent, the judge may waive the bond or sureties. If someone who is not next of kin applies, the court generally must order the next of kin and other interested persons to show cause.

What to do next

• Keep a written record of every place you searched and everyone you asked.
• Gather any copy of the will, drafts, and the details of who witnessed it.
• Do not distribute estate assets until you know which document governs.
• Get legal advice before applying, since the right application depends on the facts.
• Questions about the process can go to the Probate Division at ProbateInquiry@gov.mb.ca.

Frequently asked questions