Can You Probate a Lost Will in Alberta if You Only Have a Copy?
When a loved one passes away, locating the original signed Will is often one of the first steps in administering the estate. But what happens if the original Will cannot be found? Is the estate forced to proceed as though there was no Will?
Fortunately, the answer is often no.
Alberta law allows the Court to admit a copy of a Will to probate in certain circumstances. However, obtaining probate of a lost Will requires additional evidence and can be more complicated than a standard probate application.
The Problem with a Missing Original Will
When a person signs a Will, the original document is typically kept in a safe location such as:
A lawyer's vault;
A safety deposit box;
A home safe; or
Personal files.
If the original cannot be located after death, the law raises an important question: Did the deceased intentionally destroy the Will?
Where the original Will was last known to be in the possession of the deceased and cannot be found after death, the Court may presume that the deceased destroyed the Will with the intention of revoking it. This is known as the presumption of revocation.
The existence of a photocopy alone is usually not enough to overcome this presumption.
Can a Copy of the Will Be Used Instead?
Yes. The Alberta Surrogate Court has the authority to admit a copy of a Will to probate if sufficient evidence establishes:
The contents of the Will;
That the Will was properly executed;
That the deceased did not revoke the Will; and
Why the original cannot be produced.
The Court's primary concern is determining the deceased's true testamentary intentions.
What Evidence Is Required?
Every case is different, but evidence commonly includes:
The Copy of the Will
A complete photocopy or scanned copy of the signed Will is often the most important piece of evidence.
Affidavits from Witnesses
Evidence may be required from:
The drafting lawyer;
The witnesses to the Will;
Family members;
The executor; or
Other individuals familiar with the deceased's estate planning intentions.
Evidence of Search Efforts
The applicant should document the steps taken to locate the original Will, including searches of:
The deceased's residence;
Safety deposit boxes;
Lawyer offices;
Financial institutions; and
Personal records.
Evidence the Deceased Continued to Treat the Will as Valid
Examples may include:
Statements made by the deceased referring to the Will;
Estate planning discussions after the Will was signed;
Copies provided to family members;
Notes from the drafting lawyer; and
Other documents confirming the deceased intended the Will to remain in force.
What Happens if the Court Accepts the Copy?
If the Court is satisfied that the Will was not revoked and that the copy accurately reflects the original document, the Court may issue a grant of probate based upon the copy.
The executor can then administer the estate in accordance with the terms of the Will just as if the original had been located.
What if the Court Refuses to Accept the Copy?
If the Court concludes that the Will was revoked or that there is insufficient evidence regarding its contents or validity, the estate may be administered under:
An earlier valid Will; or
Alberta's intestacy legislation if no prior Will exists.
This can dramatically change who inherits the estate and who is entitled to administer it.
Lost Will Applications Can Be Complex
Applications involving lost or missing Wills are often more complicated than ordinary probate applications. Additional affidavits, documentary evidence, and legal argument may be required to overcome the presumption that the missing Will was revoked.
Early legal advice can help preserve evidence and avoid costly disputes among beneficiaries and family members.
Need Help Probating a Lost Will in Alberta?
If the original Will cannot be found after a loved one's death, do not assume the estate must proceed without it. A copy of the Will may still be admitted to probate if the proper evidence is presented to the Court.
Our firm assists executors, beneficiaries, and family members with lost Will applications, contested probate matters, and estate administration throughout Alberta. Contact us to discuss your situation and the options available.
This post is for general information only and is not legal advice. Estate and executor issues are fact-specific. For advice tailored to your specific situation, contact us to book a free consultation.
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