When it comes to wills, executors often find themselves in the frustrating position of trying to get beneficiaries to show them the document. Usually, the beneficiaries aren’t even beneficiaries! And even if they are, they may not be too keen on cooperating with the executor.
But what can we do if they refuse to show us the will? Is there any way to force them into compliance?
When it comes to wills in Canada, there are two key things to consider:
There is no right to a ‘reading of the will’ in Canada. Most people who die don’t even have a will. If there is a will, the executor (the person named in the will to carry out its provisions) is not required to hold a ‘reading of the will’ or provide copies to beneficiaries or family members.
That said, if there is a will, the executor must provide beneficiaries with certain information about the estate and their rights. This includes letting them know they are named in the will and what their share of the estate will be. The executor must also provide beneficiaries with a copy of the will if they request it.
So, in short, beneficiaries do not have a blanket right to see or receive a copy of the will, but they can request one from the executor.
Our Will & Estate lawyers in Toronto also assist executors, or estate trustees, navigate the probate process seamlessly, including when obtaining a Certificate of Appointment of Estate Trustee with or without a Will and administration of estates. Want to know more about what are the requirements for a will to be valid in Canada? Read this article.
Probate
If the executor probates the will, they must give notice (with a copy of the relevant portions) to each beneficiary under the will. Therefore, if a “potential beneficiary” has not received such notice, then either
- The executor has not applied to a will (probate)
- The person is not the beneficiary named in the will.
If the executor has applied to a will, it is in the public domain and can be found in the appropriate court. This is the Ontario court with jurisdiction over where the deceased person “resides” at the time of their death and is usually the court located in the county or GTA – “regional district.” You or a bailiff you have hired can search the court file and make copies of the will. Want to know more about who gets first priority in probate in Canada? Read this article.
No Probate
If the executor has not filed a will, the solution to the problem is to start court proceedings. Depending on the circumstances, it may make sense to make the executor “file or waive the right to file” as probate trustee, or it may be better to ask the court to
i) appoint a probate trustee during the trial
ii) let the named executor go and appoint someone else as probate trustee.
The choice between these options depends on several factors, including the act or omission of the executor, whether the executor has a conflict of interest or conflict with the estate or other beneficiaries, and whether the probate trustee has demonstrated hostility toward the beneficiaries to such an extent that there is reason to believe it will not manage the estate properly.
These proceedings should be initiated before the executor receives the estate’s Certificate of Appointment of Trustee and ideally before they apply for an appointment.
These proceedings require good legal advice and representation.
Good quality demonstration (written) evidence is highly preferred in these proceedings. Correspondence from and to the executor is usually very important – letters, emails, and text messages from the executor (or his lawyer) are typically crucial.
Note that the hostility of the beneficiaries to the executor is NOT the basis for removing or transferring the trustee of the estate or the basis for appointing an ETDL. It is the hostility of the executor to the beneficiaries that is important.
Excluded? Consider Other Options Before Contesting a Will
When someone is not included in a will, a very common reaction is to think about contesting the will. Contesting a will is very complicated, costly and should only be undertaken after careful thought.
Suppose you were not included in the will of the deceased individual. In that case, it is important to remember that the testator has no obligation to provide for their children, so it is not uncommon for children living apart not to be included in the will.
When someone is not included in a will, a very common reaction is to think about contesting the will. As discussed here, contesting a will is very complicated and costly and should only be undertaken after careful thought.
If you are not mentioned in the will, it is vital to remember that the testator owes you no financial obligation. This isn’t uncommon among children living away from their parents when the will is drawn up.
Claims for “dependent support” differ from claims for contesting a will. They are independent of the content of the will (and can be used even in the absence of a will) and, when appropriate, are often a more direct way to obtain relief than contesting a will. They are especially relevant for spouses with no legal right to “inherit” after the deceased.