If you think losing your keys is frustrating, spare a thought for the children of an Ontario woman who are still fighting over their mother’s missing will, years after her death.
Having gone to the trouble of drafting her will, the woman at the heart of the case probably thought she had done enough to ensure her wishes were met regarding her modest estate, valued at around $175,000, held mostly in the form of GICs.
However, her good work was undone somewhere along the line between 2011 – when the will was executed – and her death in 2020, as the document itself disappeared, leaving only a copy for the beneficiaries to go on.
One of her daughters, who was named the sole beneficiary of the 2011 will, is currently seeking to probate the copy. In order to succeed, she will not only have to overcome the objections of her siblings, but also the “presumption of revocation” – a legal doctrine that means a lost will is presumed to have been destroyed by the testator if it was known to be in their possession.
In a recent procedural decision, the judge overseeing the case narrowed the legal issues at play, ordered the production of the drafting lawyer’s file and appointed an estate trustee to serve during the litigation.
Four years on from their mother’s death, the siblings’ case is nowhere near finished and I dread to think how much it has cost them in legal fees just to get this far. By the time this lost will litigation is settled, there may not be much left to fight over.
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 key tasks assigned to the executor of an estate.
My view is that the best place for them is with your lawyer, which is why my practice is to generally store my clients’ wills. That makes the task of finding it relatively straightforward for their named executors.
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. Meanwhile, safety deposit boxes are generally not a great idea, 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 will slow down the entire process for heirs.
One day soon, we may be able to add electronic storage to the list of options. So far, B.C. is the only Canadian province to pass legislation allowing testators to sign and then store their wills electronically, as long as they can be read by a person and “are capable of being reproduced in a visible form.” The Alberta Law Reform Institute has recommended the adoption of a similar law, so Ontario may eventually follow suit.
Still, electronic storage is not all good news. On the downside, any measure that loosens the strict requirements for a will’s validity opens up possibilities for disputes or abuse.
Without proper safeguards, there could be some uncertainty over which version of a stored digital will is the most up-to-date, so it will be interesting to see how things shake out in the coming years.
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