A lost will is usually as good as no will at all.
When the original version of a will can not be found after the testator’s death, the courts typically assume they destroyed and revoked it, unless there’s evidence suggesting that’s not what was intended.
It may be possible to validate and probate a copy of the missing will, but it’s an expensive and time-consuming process, as the family and friends of a Windsor woman recently discovered.
The woman at the heart of the case left behind a note explaining that her full will could be found in her safety deposit box at a bank branch. However, a search of the box came up empty, leaving the executor of the estate with only a short document found among the deceased’s belongings, consisting of several photocopied sheets, plus a signed-and-witnessed attestation page that appeared to be original.
The executor applied in court to validate the partial copy of the missing will, over the objections of the deceased’s brother, who had been disinherited by his sister.
After hearing from one of the witnesses to the partial copy, a judge concluded that the document was authentic, noting that its contents matched a digital version found on the deceased’s computer and there was “overwhelming evidence” that it reflected her testamentary intentions.
This may sound like a happy ending, but the legal costs for all involved have likely run into the tens of thousands of dollars.
If you want your heirs to avoid the same fate, you need to make sure your will can be found by your chosen executor when the time comes for it to go into effect, as locating the deceased person’s original will and any codicils is one of the executor’s key tasks.
Many clients store their wills with their lawyer. That may make the task of finding it relatively straightforward for their named executors as long as your executor knows who your lawyer was.
Still, there are other options if you prefer to make your own arrangements. For example, you may be able to file your original will with the local courthouse, although this can prove a little cumbersome for your executor to get hold of it after your death, or for yourself if you ever need to make a change.
Self-storage is another popular alternative, but it can be difficult to strike the right balance between accessibility and security. You need a location that is easy enough to be found by your chosen executor after your death, but not so obvious that it could be interfered with or destroyed by someone with bad intentions.
Home safes may be the answer for many testators, but there is always the risk it can not be accessed.
As this case demonstrated, safety deposit boxes are generally not a great idea either, because of the bank’s strict access rules following death of the owner. Typically, banks will not relinquish the will until an executor is appointed – something that may slow down the entire process for heirs.
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