In Canada, a will is one of the most important documents you can create to ensure your assets are distributed according to your wishes after your passing. However, a common challenge for families and executors is locating the deceased’s will when needed.

This challenge can arise for many reasons, such as the will being misplaced, lost, or stored in an inaccessible location. Without clear instructions or a centralized record of its existence, families, and executors may struggle to locate the document, delaying the estate settlement process.

If no one can find your will after passing, the law presumes the testator destroyed the will, or there was no will at all. In this case, assets will be divided according to provincial laws, and an estate representative will be assigned.

To help combat this, the Canada Will Registry was created in 2019. This for-profit service has been created to act as a centralized digital vault for wills so they can always be found when needed, as there is currently no Canada-wide centralized governmental will repository. Individuals and law firms can register a will with the Canada Will Registry, and individuals can search the database for it. Learn more about how it works here.

    

How the Canada Will Registry Works

The Canada Will Registry is a centralized online platform that allows individuals and law firms to register important estate planning documents, such as wills, personal directives, powers of attorney and other estate planning documents such as life insurance policies, ensuring they can be located when needed.

Users can register their documents with the Canada Will Registry by providing essential details, including the document type, date, and storage location. This information is then securely stored in the registry’s database so it can be retrieved in the future.

When a will or other registered document needs to be found, individuals can conduct a search through the registry. The search process involves submitting a request with relevant details about the deceased or the document in question. If a matching record is found, the registry will give the request to the contact on file, with information on how to get in touch with the individual who made the search. They can then make the decision whether or not to hand over the will to the searcher in question.

The individual who made the search will not be given immediate access to the wills registered in the vault. However, they will be given confirmation on whether or not there was a match.

The standard search fee to upload a document to the wills registry is $35, and the same fee applies if you want to update an existing document. If you want to make a search in the wills registry, you can choose from a standard or professional search.

Standard searches scour the database for registered wills with the last known legal will of the person being searched. It is $95 for this type of search. Professional searches, on the other hand, also search beyond their own registry and look for unregistered wills in law libraries, as well as reach out to their partners and local law societies or law associations. The price for this service is $170.

Canada Will Registry and Creditors

The Canada Will Registry indirectly helps support the estate administration process, particularly when a search for creditors, debts or liabilities is required after someone passes away. In many cases, executors are required to notify creditors of the deceased’s passing as part of their legal duties. The Canada Will Registry also offers a Notice to Creditors service, which helps executors do their due diligence by publicly informing any creditors and claimants of the estate. This ensures that any outstanding debts can be addressed during the estate settlement process.

Who Is Entitled to See a Copy of a Will in Canada?

Wills and estate planning documents are private during the testator’s lifetime, and it is up to them who they let view them. Beneficiaries, family members, or the named executor (also known as a personal representative in Alberta), are not entitled to view a will unless the testator gives explicit permission.

However, once the testator has passed away access to the will becomes a legal matter. Generally, in Canada, anyone who is mentioned in the will, including any beneficiaries and the executor, will be entitled to see it.

In Alberta, with the original, legally binding will, the personal representative or executor will start the probate process. According to Surrogate Rules, the personal representative must notify all beneficiaries that they have been named in the will and be provided with a copy.

Members of the general public do not have an automatic right to access the will unless it has been probated and becomes part of the public record. Individuals, including those who may not be beneficiaries, can request a copy of the will from the personal representative. However, it is up to reject the request if the individual is not considered an interested party under the Surrogate Rules or if revealing the will’s contents could breach privacy or confidentiality obligations.

If you need access to a will and the personal representative refuses to provide it, you can apply to a court in your province or territory (in Alberta, for example, Court of King’s Bench is the appropriate court).

However, in Alberta, once a will becomes part of the public record after it has gone through the probate process, anyone can access and view it by submitting a request to the court where the probate was filed.

At this stage, access to the public record is not limited to beneficiaries or individuals with a connection to the estate. Members of the general public can also request to see a probated will. However, this applies only to the version of the will submitted for probate—any documents or information not included in the court filing remain private.

To avoid a will becoming part of the public record, you need to minimize the likelihood of the estate requiring probate. Learn more about how to avoid probate here.

What to Do if a Will Is Not in the Canada Will Registry?

If you can’t find a testator’s will, there are several steps you can take to locate it or proceed in the absence of a will. Begin by conducting a thorough search in common storage locations, such as their safe deposit box, filing cabinet, or other secure areas where important documents may be kept. Contact the deceased’s lawyer or notary to check if they have a copy or know where the original documents are stored.

You can also reach out to trusted individuals such as family members, close friends, other partners, or the named executor, as they might have information about the will’s location.

If no will is found after exhaustive efforts, it is possible that the testator died intestate, meaning without a valid will. In such cases, the estate is distributed according to intestacy laws in the testator’s province or territory of death. These laws prioritize close family members, such as spouses, children, or parents, in the distribution of the estate. If you are unsure how to proceed or need additional guidance, consulting a wills and estate lawyer is advisable.

How to Ensure the Will Is Legally Binding?

To ensure a will is legally binding in Canada, it must meet specific legal requirements as outlined by the laws of the province or territory where it is created. The Canada Will Registry will not check to make sure it is legally binding before storing it in its vault.

To start with, the will must be in writing, whether handwritten or typed, as verbal or oral wills are typically not recognized. The person creating the will must be of sound mind and capable of understanding the nature of the document, the extent of their assets, and the consequences of their decisions. They must also be 18 years old or older in Canada.

The will must be signed by the testator in the presence of at least two witnesses who are not beneficiaries or their spouses. These witnesses must also sign the document to confirm its validity.

To avoid disputes or challenges, the will should be clear, specific, and free of ambiguities. It is recommended to regularly review and update the will to reflect changes in assets, relationships, or laws.

Consulting a law firm can help ensure the will is properly drafted and legally enforceable. If you have any questions about registering your will, need assistance or would like to create a will or other estate planning documents don’t hesitate to get in touch with our law firm today.

The content of this article is intended to provide a general guide to the subject matter and should not be considered legal or other professional advice. Please discuss your situation with a lawyer or other professional to get detailed information regarding your specific circumstances. Refer to our Terms of Use for more details.