What Should Two Brothers Do When Their Dad’s Missing Will Apparently Leaves The House To His Deceased Brother?

In an increasingly complex world, the Financial Post should be the first place you look for answers. Our FP Answers initiative puts readers in the driver’s seat: you submit questions and our reporters find answers not just for you, but for all our readers. Today, we answer an estate question from Peter about a missing will and a deceased beneficiary.

Q. My father just died and my brother and I are working out what to do with everything. Initially, we did not think there was a will and were mentally preparing ourselves for probate, with the plan to divide any assets between us equally. My brother just got off the phone with my dad’s lawyer, who says dad had a will but we need to find what might be the only signed copy. The problematic part is that the house was left to my dad’s brother, who died a few months ago. My uncle has a son who may be in his early 20s, but I haven’t talked to him in years.

I have several questions. What happens if we can’t find a signed copy of the will? Does the estate go to probate and to my brother and me as we originally thought? As well, my brother and I are beneficiaries outside of the will to other things like bank accounts and life insurance. Currently the utilities and mortgage payments are coming out of my dad’s bank account that we would now hold. And if the house isn’t going to us, then I don’t need to fix it up and sell it, and I don’t want the current mortgage to eat away at those funds. So, is it okay to shut off utilities and stop mortgage payments? —Thanks for any help, Peter

FP Answers: Dear Peter, please accept my condolences to you and your brother on the loss of your father. It is not clear in what jurisdiction you live. Every province has different estate laws, procedures and customs. You may have an obligation to look for all valid wills.

In Ontario, where I practice law, only the original will can be validated by the court as your father’s last will. If there is only a will photocopy, it may be accepted by a court under special circumstances.

Usually, if the original will was in your father’s possession and now cannot be located, there is, in Ontario, a legal presumption that your father destroyed his will. Courts can override this presumption.

You and your brother will need to hire a lawyer. You may need to participate in any legal proceedings to oppose or to treat a photocopy of the will as the original. The photocopy may specify that your father’s brother must survive your father, or it may specify you and your brother inherit if his brother did not survive him.

You must notify the court where your father resided or passed away. You should be involved in any proceedings involving his estate. You can receive notice to participate and learn if the court will accept the photocopy of the last will.

Your lawyer may assist you with further searches to see if there is a possibility your father made a more recent will or left notes that express a final testamentary intention, other than the one possibly leaving everything to his late brother. Digital wills are valid only in some jurisdictions, but not in Ontario.

Search your father’s records for any meetings with lawyers or handwritten notes. These may indicate a contrary intention that your father was to change his will if his brother had died before he did. This is why wills need to be updated.

You mentioned that you and your brother were also beneficiaries, outside of the will, of bank accounts. Your estate lawyer can advise you how to substantiate your entitlement to these assets, if necessary.

You did not mention if you occupy the house. Estate representatives must secure estate property. The estate representative should arrange insurance on the property and pay the mortgage. Your lawyer may advise if you should continue making payments on a ‘without prejudice’ basis, with written agreement until ownership is determined.

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Edward Olkovich is an Ontario lawyer at MrWills.com. He is certified by the Law Society of Ontario as a specialist in estates and trusts law. This information does not substitute for legal advice.