If you are aware of a testator’s Will but the Executor is refusing to provide you with a copy, there are steps you can take
For some reason, a lot of family members think it is advantageous to not let other people, including potential beneficiaries, see the testator’s Will.
If you are aware of the existence of a testator’s Will but the Executor or another party is refusing to provide you with a copy, there are steps you can take to have the Will produced.
A person may apply to court to issue a subpoena that will require a person to deliver the will to a court registry. To do so, the party seeking a copy of the will must file the following documents in court:
- A requisition for subpoena in Form P35 that provides the applicant’s address; and
- An Affidavit in support of the request.
The above referenced Affidavit should state the following:
- The will is required for the purpose of obtaining a grant of probate; and
- The person to whom the subpoena is addressed (the person who has the will) has failed to comply with a request to provide the document to the applicant.
Once the court is satisfied, the Registrar may issue the subpoena in Form P37.
After the subpoena has been issued from court, it must be served on the person to whom the subpoena is addressed. This must be done by personal service.
After the subpoena has been served, an affidavit of personal service must be obtained stating when, where, how and by whom such service was affected.
The person to whom the subpoena is addressed has 14 days to deliver the Will to court or deliver an affidavit advising that the will is not in their possession or control along with any knowledge they have of the will.
If this does not happen, the following steps can be taken.
Certificate of Non-Compliance
If the Will or the affidavit advising that the person does not have the Will has not been delivered to Court, a Certificate of Non-Compliance can be obtained. To do so, a Requisition can be filed requesting a Registrar to endorse a copy of a Requisition for Subpoena in Form P35 along with a notation that the person to whom the subpoena is addressed has not, within the specified period, complied with the subpoena. The following documents should be enclosed with the Requisition:
- A copy of the Subpoena;
- A copy of the Requisition for Subpoena; and
- The Affidavit of Service.
Once the Court is satisfied, they will provide an Endorsement of Non-Compliance.
Warrant After Subpoena
The final attempt to obtain the Will is through a Warrant After Subpoena in Form P37.
The Court may cause the served person to be apprehended and brought before the Court and to be detained in custody until the Will is delivered.
In order to obtain a Warrant After Subpoena, the following documents must be filed in Court:
- Requisition requiring a Judge to endorse the Warrant After Subpoena;
- Draft Warrant After Subpoena; and
- Original Endorsed Requisition for Subpoena.
After the Warrant After Subpoena is issued, a peace officer can be retained to carry out the Warrant.
After the person has been detained, Court may order the release of the detained person upon receiving an undertaking in Form 116 from that person to produce the Will.
The above may appear to be complex and severe steps that need to be taken in order to compel Will production but unfortunately when dealing with Wills, there are quite a few family members who feel they retain power by refusing/failing to provide the Will to other potential beneficiaries.
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