Once you’ve taken the trouble of drafting a will, make sure you keep it safe.
In my opinion, the best place for the original copy is with your lawyer, and my practice is generally to store wills for my clients.
However, CTV News recently reported that fewer legal professionals than ever are interested in holding on to their client’s original wills, because of the cost and responsibility of storing such important documents.
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 it 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.
Home safes and safety deposit boxes fit the bill for many testators, but there is always the risk it may disappear somewhere along the line.
A few years ago, the potential beneficiaries of an Ottawa woman’s $7-million estate ended up in court fighting over an unnecessarily missing will, which had directed the entire amount go to a long-term care home. Before her death, the testator rejected her lawyer’s offer to store the will, preferring to keep hold of it herself.
However, when the original could not be found after she died, the woman’s niece and nephew were able to claim that their aunt had intentionally destroyed it, leaving them the to inherit as a result of the intestacy. A judge eventually sided with the long-term home, ruling 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.
In the long term, will storage may become less of an issue if Ontario follows the lead of B.C. and opens the way for testators to draft and execute fully electronic wills.
Last year, the western province became the first Canadian jurisdiction to take the process fully digital, allowing for electronic signature and storage of a will, so long as they can be read by a person and “are capable of being reproduced in a visible form.”
We are already part of the way there after Covid-19 pandemic forced Ontario to embrace virtual witnessing, but for now, the ban on electronic signatures for the purpose of wills, testamentary trusts and powers of attorney remains in this province.
Ironically, Ontario’s remote witnessing rules have actually boosted the amount of paper that needs to be stored as part of a will, because each of the three people typically on a call initials and signs their own counterpart documents, which must then be brought together for filing, tripling the normal size.
Still, we’ve enthusiastically embraced the possibilities presented by the new rules in our office, just as we do for any technological advance that makes legal assistance more accessible and affordable for all.
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.
