How to Avoid Having the Wrong Will Probated After Your Death

Yesterday, I wrote a post about a case in which one brother, Horace Lee, applied for a received probate of his late brother, Henry Lee’s 1977 will, which left everything to Horace. Although Horace Lee knew Henry Lee made a later will in 1985, in which Henry Lee included their other siblings. What Horace Lee had done did not come to light until about 15 years later, after Horace Lee’s death. By then most of the other beneficiaries of the 1985 will had also died.

I am aware of another circumstance in which the executor mistakenly applied for and received probate of a will that was revoked by a later will. In that case, the problem did not come to light until about 30 years later. The issue was resolved by an agreement among all of the beneficiaries (and in some cases their descendants) of both wills.

Although not common, probate of the wrong will is not unheard of.

When you make a new will, how can you make sure no one applies to probate your old will, which you are revoking?

In British Columbia there are a couple of things you can do.

First, you can tear-up your old will after you sign the new one. Although it is possible to obtain probate of a copy of the will, the applicant must prove that the testator did not destroy the will to revoke it. The presumption when an original will is missing is that the testator revoked the will.

Secondly, you can file a wills notice with the British Columbia Vital Statistics Agency. The notice sets out the date of the new will. When someone applies to probate a will in British Columbia, he or she must search the Wills Registry, and provide a copy of the search results to the court with the probate application. If the search indicates a later will, the applicant will need to satisfy the court that there is no later will revoking the will he or she is attempting to probate.

Unfortunately, Henry Lee made his own will, and did not get advice from a lawyer on this issue.