When a loved one passes away, the distribution of their estate can be a confusing and emotionally charged process. A common question we receive from surviving family members is: “If I am named in the will, do I automatically get a copy?”
The short answer is no, there is no automatic right to see the will immediately upon death. However, if the estate goes through the probate process, the law mandates that certain individuals must be formally notified and provided with a copy. Because estate administration falls under provincial jurisdiction in Canada, the exact rules depend entirely on where the deceased lived, the type of beneficiary you are, and whether the will is probated.
Below, we break down your legal rights to view a will in Canada, focusing on the distinct frameworks in Ontario and British Columbia.
Who Keeps the Original Copy of the Will?
Before discussing who gets to see the will, it is important to understand who legally controls it. There is only ever one valid, original Last Will and Testament.
Upon death, the named Executor (or Estate Trustee) has the sole legal authority to possess the original document. Often, the original will is kept in a safety deposit box, at the deceased’s home, or held in the vault of the law firm that drafted it. If a lawyer is holding the original will, they will only release it to the named executor after receiving a valid proof of death (such as a death certificate) and verifying the executor’s identity.
At this stage, the will is a strictly private document. The executor is not legally obligated to hold a “reading of the will” (a trope mostly found in movies), nor are they legally compelled to email or mail copies to family members on day one.
Specific vs. Residuary Beneficiaries: A Crucial Distinction
Once the executor begins administering the estate, whether or not you get a full copy of the will often depends on your legal classification as a beneficiary.
1. Specific Beneficiaries A specific beneficiary is someone gifted a fixed asset or a set amount of money. For example: “I leave $10,000 to my nephew, John.”
- Do they get a copy? Generally, specific beneficiaries are only entitled to be notified of their specific inheritance. An executor may choose to provide them with an extract of the will that pertains to their gift, rather than the entire document. They are also not entitled to view the broader financial accounting of the estate.
2. Residuary Beneficiaries A residuary beneficiary is entitled to a percentage or share of the “residue” of the estate (whatever is left over after debts, taxes, and specific gifts are paid).
- Do they get a copy? Yes. Because the value of their inheritance fluctuates based on the estate’s total value and expenses, residuary beneficiaries are legally entitled to a full copy of the will and a complete accounting of the estate’s assets and liabilities.
The Probate Process and Mandatory Disclosure
If the estate contains significant assets, real estate, or accounts held by financial institutions, the executor must apply for probate to prove the will’s validity. It is at this stage that provincial laws enforce transparency.
Ontario: Notice Under the Rules of Civil Procedure
In Ontario, probate is formally known as applying for a Certificate of Appointment of Estate Trustee.
- Notice to Beneficiaries: Under Rule 74.04(2) of the Ontario Rules of Civil Procedure, the executor must serve a Notice of Application to every person entitled to a share in the estate.
- Providing the Will: Along with this notice, the executor must provide a copy of the will. Notice must also be served to the Office of the Children’s Lawyer if a beneficiary is a minor, ensuring their inheritance is protected.
British Columbia: Broad Disclosure Under WESA
British Columbia has some of the strictest notification requirements in Canada, largely to protect spouses and children from unfair disinheritance.
- Form P1 Notice: Under the Wills, Estates and Succession Act (WESA), before an executor applies for an Estate Grant (probate), they must deliver a formal notice (Form P1).
- Who gets the will? The executor must provide a copy of the will not only to the named beneficiaries but also to anyone who would have inherited if there was no will (intestate heirs).
- Disinherited Family: BC requires notice to be given to the deceased’s spouse and children, even if they were cut out of the will. This is because, under Section 60 of WESA, spouses and children have a statutory right to challenge a will if it fails to make “adequate provision” for their proper maintenance.
What to Do If an Executor Refuses to Show the Will?
If you believe you are a beneficiary, or if you are a spouse/child who has been disinherited, an uncooperative executor can be highly distressing. If an executor refuses to share the will and refuses to apply for probate, you have legal recourse.
In Ontario, an individual with a financial interest in the estate can apply to the Superior Court of Justice under Section 9 of the Ontario Estates Act. This allows the court to issue a subpoena or an order compelling the executor (or the person holding the document) to produce the testamentary document to the court.
Wills as Public Records
It is important to remember that once a will is submitted to the court for probate, it ceases to be a private family document. It becomes a matter of public record. Any member of the public—including disinherited family members, creditors, or journalists—can visit the courthouse where the probate application was filed and, for a small administrative fee, request a photocopy of the probated will.
Need Assistance with an Estate Dispute?
Navigating estate administration, beneficiary rights, and uncooperative executors requires experienced legal guidance. If you are struggling to obtain a copy of a will, or if you are an executor looking to ensure you meet your legal fiduciary duties, our estate litigation team can help.