Can You Probate a Copy of a Will in Manitoba? What to Do When the Original Goes Missing

When someone dies, the executor must find the original will first — and this is the when things can go wrong fast.

When a loved one passes away, one of the first things the family looks for is the will. Usually it turns up: in a filing cabinet, at a lawyer’s office, in a home safe. But sometimes what turns up is a photocopy, a scanned PDF, or a lawyer’s letter referring to a will that nobody can actually find. If you’re the named executor, that’s when your job can get complicated.

• Why does the original matters?

• What happens when it’s missing? 

• How to avoid this?

Filing the original is simple — but a copy can still work

In Manitoba, when you apply to the Court of King’s Bench for probate — the court’s confirmation of your authority to act — the straightforward path is to file the original signed will: the actual document the deceased signed, with the original signatures and witnessing intact. When you have the original, probate is routine.

If the original has been lost or destroyed, you’re not out of options. Manitoba’s King’s Bench Rules set out a specific procedure to probate a copy instead. It’s a workable path — but it’s a larger application, it takes longer, and it comes with conditions. A fallback, not a substitute for having the original in hand.

What it takes to probate a copy

Under Manitoba’s King’s Bench Rules, if the original was lost or destroyed you can ask the court to accept a copy. You’ll need to file three things: a copy of the will (if one is available), affidavit evidence explaining how the original was lost or destroyed, and consents from everyone who would have inherited if the deceased had died without a valid will — unless the court orders otherwise.

That third requirement is the one to watch. The people whose consent you need are the deceased’s intestate heirs — the relatives who would inherit under the Intestate Succession act, meaning those relatives who would inherit if there was no will — These may be people who were not named in the will!  If the copy leaves someone less than they’d receive under intestacy (or nothing!), you can find yourself needing the signature of the very person who was left out of the will.

The reason you need the consents of those who would inherit if there was not will is because there’s presumption that when a will last known to be in the deceased’s hands can’t be found, it was deliberately destroyed — in other words, revoked.

While the presumption still exists at law, the ability to probate a copy of a will is handled inside the same application: you provide affidavit evidence about how and where the will was lost. This can normally satisfy the court it wasn’t torn up on purpose. Strong evidence — the drafting lawyer confirming it was stored at their office, a house fire, a flood — makes this straightforward. Thin evidence may make it harder, and can add delay and cost.

Where original wills tend to hide

Before assuming the worst, it helps to know the usual spots:

• The drafting lawyer’s office. Many firms store clients’ original wills in fireproof storage at no charge. If you know who prepared it, start there.
• A home safe or “important papers” file. Check the obvious places, and the not-so-obvious ones.
• A safety deposit box. This one comes with a catch — see below.
• With the executor. Sometimes the deceased simply handed the original to the person they named. One more reason executors should know in advance.

Manitoba has no central government registry of wills, so there’s no single database you can search to confirm a will exists or where it’s kept. If nobody wrote down the location, you’re left doing detective work at the worst possible time.

The safety deposit box catch-22

If you suspect the will is in the deceased’s safety deposit box, you may run into a frustrating loop: the bank often won’t let you into the box without proof of your authority (probate) — but you need the will to apply for probate. Most banks have a specific procedure that allows a will to be retrieved from a box under supervision, but it can be a hassle and it takes patience. Build in time for the delay.

The easy fix: know where it is, now

Every problem above disappears if the executor simply knows where the original will is located and can get their hands on it. If you’ve been named someone’s executor — or you’re doing your own planning — take five minutes to confirm:

• Where the original signed will is physically kept – if possible, actually look at it to confirm it’s the original!;
• If you are the Testator, that the person named as executor knows the location and can access it;
• Whether there are any codicils (amendments) that need to be stored alongside it;
• That what you’re looking at is, in fact, the most recent Will.

That short conversation, had while everyone is healthy, can spare the executor weeks of stress and thousands in legal fees later.