Drafting your will is just the first step in the estate planning process.
The second, (often-overlooked) stage involves keeping the will safe and available until the time comes for it to go into effect.
In one recent B.C. case, the family of a B.C. man had to turn to the courts for help when they were unable to find the original version of his 2015 will.
In their application, the family members asked the court to decide whether the missing will should be considered revoked, with the administration of the estate proceeding under intestacy, or if probate could instead be granted using the existing copy in their hands.
The judge ultimately ruled that the copy was good enough to grant probate, since she could not be sure that the deceased ever actually had possession of the original version.
In this case, the interests of all beneficiaries were aligned and the application was unopposed, which would have limited the amount of time and money wasted on the legal proceeding.
Still, it’s easy to see how costs and hostility could escalate in lost will cases involving less harmonious families or more valuable estates. Indeed, an older Ontario case centred around an Ottawa woman’s $7-million estate was considerably more hotly contested, as relatives of the deceased fought it out over multiple days in court with a long-term care home named as the sole beneficiary in the missing will.
After the woman’s death, only a copy could be found, allowing her niece and nephew to claim that they should inherit on an intestacy because their aunt had intentionally destroyed her will. However, the judge eventually ruled in favour of the long-term home, concluding that the will could be proved in the absence of the original as there was no evidence to suggest the aunt intended to make any changes before her death.
Locating the deceased person’s original will and any codicils is one of the most important tasks assigned to the executor of an estate, so testators should make sure that their chosen executor knows exactly where to look.
In my opinion, no matter where you store your Will, I advise clients to let their lawyer know and to put the notes in their file. It’s not full proof but it does add an additional layer of possible protection. Many lawyers will store their clients’ Wills.
For those who are forced to make their own arrangements – or who prefer to – there are other options.
Some file their original will with their 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 need to make changes before then.
Another popular alternative is to store the will yourself. It can be a little tricky to find the balance between a place that is safe, secure, and easily locatable by your chosen executor after your death, but not so accessible that it could be interfered with or destroyed by someone with bad intentions.
Safety deposit boxes, are generally not a good idea, unless someone other than the deceased can access it, which is generally not the case and without access to the Will this may hold up the administration of the estate. Disclaimer: The content on this website is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this website are advised to seek specific legal advice by contacting members of Laredo Law (or their own legal counsel) regarding any specific legal issues.
