What Should Victor Do If His Uncle Says There Is A Will But Refuses To Produce It?

Q. My father recently died in British Columbia . My two brothers and I have not been able to find a will but we started probate on the estate after receiving the death certificate. My father’s brother (our uncle) says my dad has a will and left everything to him . He refuses to show us the will, which he says was signed in 2011. I find it hard to believe he has such a will since my father passionately disliked his brother and often stated to us that he wanted everything to go to us kids . My question is, if he has a will and us kids have already started probate, what happens? Can my siblings and I contest the will? My uncle says it is a handwritten will. It’s possible my dad took a loan from my uncle because he bought a new farm tractor around 2011. I’m guessing that, if a will exists, Dad may have written that will out just in case he died before the debt was paid. What’s our best course of action in this case? —Thanks for any help you can provide, Victor

FP Answers: Dear Victor, I note that you started probate for your father who passed away in British Columbia. You did not state if you had retained a lawyer to help you with the probate process and that your father resides in that province. If you have a lawyer, assuming this is in British Columbia, I must advise you that I cannot interfere with any legal advice you receive. I am licensed to practice law only in Ontario and not in British Columbia. Furthermore, I am not allowed to interfere with any existing relationship you may have with lawyers who are advising you. You should always prefer the evidence of your own lawyers who are wholly cognizant of all the surrounding personal circumstances and your particulars to properly advise you.

Subject to this stipulation and strictly for information purposes, I can offer this reply to your question. There should be a procedure in British Columbia to require anyone who claims they have a testamentary document to produce it to the court and to you. That your father’s relative refuses to show you a copy of this alleged will is unacceptable; a letter from your lawyer may request the document before you seek a court order to obtain a copy, if necessary.

Your lawyer can demand a copy of the alleged will and, according to Ontario procedure, a court order requiring anyone holding such an instrument to produce it within a specified period. Once you receive a copy of the alleged will you can seek legal advice to determine its validity and decide what next steps you may need to take. Your own probate application may be put on hold until a court decides the process if there is a valid will.

It may be necessary for you to require the relative to submit the alleged will to the court. You must disclose it to the court as well. Does the relative wish to validate the document as a will through the court process? The relative may have received the handwritten document, possibly as security for a loan. This may suggest possible suspicious circumstances or improper influence and legal grounds to investigate. You may possibly need to contest the handwritten will.

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The handwritten will may not satisfy all the legal requirements for validity. A legal opinion may be needed.

This relative may be reluctant to provide you with a copy as it could affect their bargaining position. For example, the wording of the handwritten document may be ambiguous or unclear. This may require anyone claiming under this handwritten document to expend considerable dollars to validate the document in court. This could be unnecessary if you admit that there is an outstanding tractor loan that has not been fully repaid. The real issue may simply be, what evidence is there that the loan was fully repaid?

This information is no substitute for legal or tax advice. 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.