Is a Photocopy of a Will acceptable if the Original Will cannot be found?

A question a number of my clients have is whether a photocopy of a Will is acceptable if the original Will cannot be found.

The answer to that question will depend on whether probate is required or not.

No Probate Required

If the deceased person’s estate does not include an interest in real estate, shares in a public company or significant assets in banks or financial institutions, probate can be waived in certain circumstances. Whether or not probate will be required for bank accounts, will depend on the internal policy of each financial institution. If the amount in the deceased person’s bank account is small, banks will sometimes accept a non-probated notarized copy of the will in order to transfer the funds. In this case, the bank will require the executor of the Will to sign an indemnity agreement, where the executor agrees to indemnify the bank for any losses incurred if the copy of the Will accepted by the bank turns out to be invalid.

Probate Required

If probate is required, usually because the deceased person’s estate includes real estate or if a financial institution requires it, the executor will have to apply to a court for probate before the assets can be transferred. The general rule is that in order for the court to accept a Will for probate, an original Will is required. The court will not accept a photocopy of a Will (even a notarized photocopy of a Will), unless the following facts can be proven by the person requesting for a probate of the photocopied Will:

(1)              that the original Will was duly and validly executed;

(2)              particulars tracing possession of the Will to the date of death, and afterwards if the Will was lost after death;

(3)              rebuttal of the presumption that the Will was destroyed by the testator with the intention of revoking it; and

(4)              proof of the contents of the lost Will. (Sorkos v. Cowderoy)

If the above facts can be proven to the satisfaction of the court on a balance of probabilities, then the photocopied Will will be accepted by the court for probate. Otherwise, the photocopied Will will not be acceptable for probate. Hence, it is important that your executor knows the location of your original Will, since proving the above facts to the satisfaction of a court may be difficult, time-consuming, expensive or impossible.