Can’t find the original will? Probate with a copy in BC

By Sundeep S. Grewal, lawyer at Lawgical Law Corporation · Reviewed November 11, 2026

Published November 12, 2026

Sundeep S. Grewal is a lawyer at Lawgical Law Corporation, called to the BC bar in 2018, and a member of the Law Society of British Columbia.

Updated November 11, 2026: the Supreme Court Civil Rules (Rules 25-3, 25-4, 25-14), the Wills, Estates and Succession Act (ss. 37, 58) and the court decisions cited below checked that day.

If the original will can’t be found, probate in BC isn’t necessarily over. The Supreme Court Civil Rules allow an executor to apply for probate of a copy, as long as they explain why the original isn’t available. The hard part is a legal presumption: if the will was last known to be in the will-maker’s own possession and it isn’t found after death, the law presumes they destroyed it intending to revoke it. The executor has to rebut that with evidence, such as what the will-maker said about their will, how they kept their papers, and whether anyone else had access. If the registrar isn’t satisfied, a court application is needed. With no copy at all, a lawyer’s draft or other evidence of the will’s terms can sometimes be proved instead.

Lawgical Law Corporation, a probate and estate law firm with offices in Surrey, Abbotsford and Vancouver, BC, has handled estates where only a copy of the will could be found; this guide is by Sundeep S. Grewal.

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First, search properly

• Order a BC wills notice search. A notice referring to the will is some evidence that a will was made, and may say where it was kept.
• Ask the lawyer or notary who prepared it. Many keep the original.
• Check the home, safety deposit box and papers, and ask family.

Applying for probate with a copy

Rule 25-3(3)(a)(i) allows a copy of the will to be filed if the original doesn’t exist. The submission for estate grant must say why the copy is available but the original is not, and it is wise to file affidavit evidence explaining the missing original and rebutting the presumption of revocation. If the registrar is satisfied and nobody opposes it, probate of the copy can issue. If not, the registrar can require a court order before issuing the grant (Rule 25-4(3)). A grant based on a copy is limited until the original or a more authentic copy is found.

The presumption that a missing will was destroyed

If a will last known to be in the will-maker’s custody isn’t found at death, the presumption is that the will-maker destroyed it intending to revoke it (Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (C.A.); Re Galloway Estate, 2023 BCSC 1204). Evidence that can rebut it includes:

• the will-maker’s character and how they kept important papers;
• codicils made later, which show the will was still in force;
• statements to beneficiaries about what the will left them;
• what the will-maker said and did before and after signing the will.

If the will can be traced out of the will-maker’s hands, for example to a lawyer or a family member, the burden of disproving revocation can be met by showing the will-maker had no opportunity to destroy it.

A will can also be revoked by a later document, even a draft replacement that doesn’t meet the formal signing rules (Horton v. Bruce, 2017 BCSC 712). So a missing will and a newer draft need careful review.

What the court needs to see

1. A valid will existed: properly signed and witnessed, and the will-maker had capacity. A witness or the lawyer who supervised the signing can give that evidence.
2. It wasn’t revoked: evidence rebutting the presumption.
3. Its contents: a copy, a completed draft from the lawyer’s file, or witness evidence of its terms.

The court may require notice to everyone who would inherit if there were no will, and getting their written consents helps.

If there’s no copy

The rules on probate of a copy don’t cover the situation where no copy exists. The executor can apply to court for an order admitting the will based on a completed draft, a reconstruction or other evidence of its terms, under WESA s. 58 or Rule 25-14. See improperly signed wills and s. 58. If the will can’t be proved, the estate is distributed as if there were no will: see dying without a will in BC.

Mistakes I have seen

• Filing a copy with no explanation of where the original went.
• Not asking the drafting lawyer for their file, which often holds the best evidence.
• Overlooking family members who benefit if the will is treated as revoked, and who must get notice.
• Assuming the will is revoked and distributing on an intestacy, when the evidence could have rebutted the presumption.

Frequently asked questions

Is a photocopy of a will valid in BC?

It can be admitted to probate if the original doesn’t exist and the court or registrar is satisfied, but the presumption of revocation must be dealt with first.

How long does probate with a copy take?

Longer than a normal application, especially if a court order is needed.

What if the original turns up later?

A grant based on a copy is limited until the original or a better copy is found, so the original should be brought to the court.

Can a family member who’d inherit without a will object?

Yes. Anyone who benefits if the will is treated as revoked has an interest, and the court may require notice to them.

What should I do right now?

Order the wills notice search, contact the lawyer who prepared the will for their file and any copy, and write down who last saw the original and where.

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Sources

• Supreme Court Civil Rules, Part 25 (Rules 25-3, 25-4, 25-14), BC Laws
• Wills, Estates and Succession Act (ss. 37, 58), BC Laws
• Sugden v. Lord St. Leonards (1876), 1 P.D. 154 (C.A.); Re Galloway Estate, 2023 BCSC 1204; Horton v. Bruce, 2017 BCSC 712, as discussed in CLE BC, Probate and Estate Administration Practice Manual, §5.82

This article is general information about BC law, not legal advice for your situation.