Lost Original Will in BC: How to Apply for Probate with a Copy

You have been named executor, you have looked everywhere, and all you can find is a photocopy or a scan of the will. That is stressful, but it does not automatically mean the will cannot be used.

This article walks through what the British Columbia court rules say about filing a copy, the notice and paperwork that surround the application, and the questions that depend on your facts and are worth raising with a lawyer.

This article covers the law of British Columbia.

What the rules say about a copy of the will

Probate is a court-supervised process that checks that a will is real, was made without fraud or undue influence, and is the last will the person made. The court must have proof that the will is valid before it grants probate.

For a physical will made with witnesses present, Rule 25-3(3)(a)(i)(A) requires the originally signed will to be filed. If the original is unavailable, a physical copy or PDF copy may be filed instead.

How a court responds to a missing original, and what explanation it may want about why the original cannot be found, depends on the facts. That is the part of your application where legal advice is most useful.

Gather the story behind the missing original

Because the original is missing, the way you present the circumstances matters. Start collecting information now, even before you know exactly what will be needed.

• The best copy you have, and where and how you got it.
• Where the original was last kept, and who had access to that place.
• Who helped prepare the will, and whether they kept a copy or a record.
• The searches you made: the deceased's home, safe deposit box, papers and any storage.
• Anyone who may have seen the will signed or knew its contents.

Keep notes of dates and names as you go.

Step one: give notice before you apply

Before applying for an estate grant, you must deliver a Notice of Proposed Application in Relation to Estate in Form P1. Where there is a will, the notice goes to named executors and alternate executors who are alive and have a prior or equal right to apply, the beneficiaries, certain persons who would inherit on intestacy, and the Attorney General if the government is entitled to the estate under the Escheat Act.

The application cannot be made until at least 21 days after the notice and materials are delivered. A notice sent by mail is deemed delivered on the date it is mailed, while one sent by email, fax or other electronic means only counts as delivered if the recipient gives a written acknowledgement of receipt.

Notice rules change for some recipients. For a minor, notice goes to the parents the minor lives with, or to the parent or guardian responsible for the minor's financial decisions, or otherwise to the minor, and also to the Public Guardian and Trustee, unless the applicant is an executor, the minor is not the deceased's spouse or child, and the will creates a trust for the minor and appoints a trustee. For a mentally incompetent person, notice goes to the committee if one has been appointed, or otherwise to the person, and in either case also to the Public Guardian and Trustee. If a person entitled to notice has died, the notice goes to their personal representative instead.

Notice matters especially with a copy of a will. A person entitled to notice, or someone claiming under an earlier or later will, can oppose the grant by filing a notice of dispute in Form P29. Someone who would receive less under the copy than under an older will has a reason to look closely.

The documents you file

The filing package includes the following.

• A submission for estate grant in Form P2.
• Your affidavit, in Form P3, P4, P5, P6 or P7, depending on the type of grant.
• Form P9 affidavits of delivery of the notice.
• Two copies of a wills notice search certificate from Vital Statistics.
• An affidavit of assets and liabilities, in Form P10 or, where it applies, Form P11.

A search for a wills notice must be submitted with every probate or administration application, even if you believe you hold the original last will. The affidavit of assets and liabilities may be filed at the same time as the other documents or later.

Before applying, you must make a diligent search and inquiry to find the deceased's property and liabilities. Applications go to the Supreme Court of British Columbia, and you can apply at any B.C. Supreme Court registry. You do not need a lawyer to apply, although a missing original is a good reason to talk to one.

Fees and what to do next

There is a court fee of $200 to file for and obtain a grant, and no court fee is payable where the estate does not exceed $25 000 in value. The probate fee must be paid before the grant is issued, and it is in addition to the court filing fees.

• Secure the copy you have and record how it came to you.
• Write down every place searched for the original.
• List the people who must receive the Form P1 notice.
• Order the wills notice search from Vital Statistics.
• Start listing assets and debts.
• Speak with a lawyer about how to present the missing original to the court.

Frequently asked questions