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Apr

11

Probate | Estate Administration | Wills and Estates (Part 2): Accessing a Deposited Will

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. It may not be up to date. Laws change often and without notice. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you. You can also contact me directly.

This is the second of a series of MANY blog posts about Estate Administration (formerly called “probate“) in Ontario. Be sure to check them all out! Here, I’ll be talking about accessing wills deposited for safekeeping.

Accessing a Deposited Will
No one can remove, copy, or inspect a deposited Will during the testator / testatrix’s lifetime (according to rule 74.02 of the Rules of Civil Procedure) except for the following persons:

  • the testator / testatrix in person;
  • a person with a court order;
  • a guardian of the testator / testatrix’s property (statutory guardian of property or court-appointed guardian of property); or
  • an attorney acting under a Continuing Power of Attorney for Property executed by the testator / testatrix.

What kinds of Identification and Supporting Documents must be presented?
When one the above-mentioned individuals wants to access a deposited Will during the testator / testatrix’s lifetime, they will need to provide the following (note that a health care may not be used under s. 34(2) of the Personal Health Information Protection Act, 2004):

Testator in person: 2 pieces of identification

Guardian of Testator’s Property: they can inspect the testator / testatrix’s will during the testator’s lifetime unless there are restrictions on the guardian’s appointment. They must file a request for access in writing and provide 2 pieces of identification;

Public Guardian and Trustee: must file a letter, on the letterhead of the Office of the Public Guardian and Trustee and signed by an authorized official, saying that they are the property of the testator’s property by virtue of section 15, 16, or 22 of the Substitute Decisions Act, 1992;

Court-Appointed Guardian: court-order and confirmation in writing that there are no restriction on the guardian’s appointment that would prevent him or her from accessing the Will;

Attorney acting under Continuing Power of Attorney for Property: 2 pieces of identification, an original and 1 copy of a valid Continuing Power of Attorney for Property, and a sworn / affirmed affidavit from the attorney that states that the grantor (i.e. testator) is incapable of managing property or that the attorney has reasonable grounds to believe so;

Person authorized by Court Order: 2 pieces of identification and a certified copy of the court order that permits the Will to be inspected and / or copied and removed. The court order must give the name, address, and date of birth of the testator and the full name of the authorized person.

Process to Access a Deposited Will during the Testator’s Lifetime
When one of the above mentioned person tries to access a deposited Will during the testator / testatrix’s lifetime, then that person may be authorized (depending on WHO they are and WHAT authority they have) to remove the Will, inspect it, have it photocopied, and return it. Court staff will note what authority the person has and ensure that the proper procedure for accessing the Will is followed.

Process to Access a Deposited Will after the Testator’s Death
After the testator / testatrix dies, then a person may copy or inspect the Will that has been deposited. The person must file a written request to copy or inspect the Will (include the Testator’s name, address and date of birth), provide the death certificate of the testator issued by a funeral director or the Registrar General; and provide 2 pieces of identification.

Once the above things are done, court staff will verify everything, photocopy the Will and certify it to be a true copy of the original, charge a per-page fee, place the original Will back in the envelope and document everything that’s taken place.

Delivery of Will upon Testator’s Death
Worth mentioning is that, upon a testator’s death, and where a written request has been filed, the testator’s Will MUST be delivered to their estate trustee or to another person as the court may direct (rule 74.02(7) of the Rules of Civil Procedure). Here, the registrar will confirm the identity of the estate trustee or person named in the court order, photocopy and certify the Will as being a true copy, require the person to sign a written receipt confirming that the person receiving the original Will, provide the Will to that person, and document everything. The certified copy of the Will, along with the identification, death certificate (or photocopy) and receipt will be placed in the envelope that contained the original Will. The original Will is handed to the person.

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Legal Forms. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Legal Forms and make a post.

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