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Estate trustees – an individual (or individuals) appointed to administer a deceased’s estate – may find themselves unable to locate the original copy of the deceased’s Will. Perhaps the Will has been misplaced, or destroyed. What is to be done in these situations? Luckily, the Rules of Civil Procedure provide a way forward.

In this situation your lawyer can make an application to the court. Following Rule 75.02 of the Rules of Civil Procedure, the reviewing judge may issue a Certificate of Appointment of Estate Trustee with a Will without the necessity of any court appearance. This can only be done if a detailed affidavit is included in the application that clearly outlines the following:

  1. the reasons why the original Will cannot be found;
  2. proof that Will was not destroyed in an attempt by the deceased to revoke it; and
  3. details as to why this Will is in fact the last Will of the deceased.

Further, the application must contain the consents of all the proposed beneficiaries that the proposed Will is in fact the last Will and Testament of the deceased.

If any proposed beneficiary objects, a court appearance is the only means of resolution. Here, the person propounding (or putting forward) the copy of the Will must file with an application with the court. The application must contain supporting evidence addressing the circumstances of the lost Will. At the court appearance, also known as a hearing, any beneficiary opposing the proposed Will is entitled to provide evidence to support their position and cross examine the person submitting the Will for probate. At the end of the hearing the judge will then determine whether the copy of the Will be treated as the last Will and Testament of the deceased.

In order to avoid these sorts of scenarios, it’s a good practice to advise your estate trustee(s) of the location of your original Will. For more advice on ensuring your final wishes are respected – and to get started on your estate planning – contact Siskinds’ Wills and Estates group today to arrange an appointment.

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