What to Do If the Original Will Is Lost in Prince Edward Island

Many families open the filing cabinet or the safety deposit box and find only a photocopy of the will, or nothing at all. It is a stressful moment, but it does not always mean the end of the road.

This article explains why the original document matters, where people commonly look, and how the Estates Section process fits in. What the court will require to accept a lost will depends on the facts, so a lawyer should confirm that step.

This article covers the law of Prince Edward Island.

Why the original matters

Probate is the court's confirmation that a will is valid and that the executor can act. A copy cannot show those things as well.

If the original cannot be found, the court may have questions, such as whether the will was lost by accident or was destroyed on purpose. Those questions are for the court to decide on the evidence, which is why this is a point to take to a lawyer early.

Where to look first

• The deceased's home files, desk, and any fireproof box.
• A safety deposit box at the deceased's bank.
• The lawyer or notary who prepared the will, who may have kept the original.
• Relatives or the named executor, who may have been given the original.
• Recent paperwork, such as letters or emails, that points to where the will was kept.

Write down where you searched and when. That record can matter later if the court asks what efforts were made.

How the Estates Section process fits in

An application for probate or letters of administration is made to the Supreme Court's Estates Section by petition under Rule 65. The petition must state the date of death, the deceased's marital status, and the name, age and address of each child. The prescribed petition for probate is Form 65A, and the executor swears an oath on Form 65D.

The grant issued to an executor is Letters Probate (Form 65U). How a petition based on a copy should be framed, and what proof the court will want, depends on the circumstances. Do not guess at this part. Where Rule 65 and the Probate Act are silent, the general Rules of the Supreme Court apply.

If the named executor does not wish to act, they may file a renunciation (Form 65K). If named executors fail to take out probate after thirty days' notice from an interested party, letters of administration with the will annexed may be granted instead.

If no valid will can be relied on

If the court cannot be satisfied about a will, the estate may have to be handled as though there were no will. The petition is then Form 65C, the Petition for Grant of Administration. It requires the petitioner to list the next of kin and heirs at law and state the grounds of the applicant's right to administer.

On an intestacy where no letters have issued, a person interested must, before applying for a grant, cite those with a prior right to accept or refuse administration. Where no one is entitled or willing to administer, the Provincial Administrator of Estates Act governs the Provincial Administrator's role. Who inherits can change a great deal between a will and an intestacy, so family members may disagree about how hard to look for the original.

What to do next

• Keep any copy of the will safe and do not alter it.
• Do not distribute assets until the legal position is clear.
• Contact the lawyer who drew the will, if you know who it was.
• Tell other family members what you have found and what you are doing.
• Speak with a lawyer about proving a lost will before filing anything.

Frequently asked questions