Having gone to the trouble of drafting a will, you don’t want to undo your good work by letting it get lost.
If the original version of your will can not be found when the time comes for it to go into effect, your heirs could end up wasting time and money in court to ensure your wishes are carried out.
In a recent case, the family of a deceased man needed a judge to settle their estate dispute after his 2019 will went missing following his death in 2021.
According to the decision, the testator left his entire estate to his mother’s goddaughter, who asked the court to a accept a copy of the document for probate.
However, the deceased man’s sister objected, invoking 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 – to argue that her brother had died intestate, leaving her to inherit everything.
In the end, after hearing that there was no evidence the siblings had ever reconciled following a serious falling out while the brother was still alive, the judge found that the presumption of revocation had been rebutted and that the copy was good enough to grant probate, noting that his choice of beneficiary was a rational one.
Although this was a B.C. case, the same presumption of revocation applies in Ontario, which means that heirs in this province could also end up in court unnecessarily if a will is lost.
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, the best place for the original copy is with your lawyer, and my practice is generally to store wills for my clients, which makes the task relatively straightforward for our clients’ executors.
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.
Another popular alternative is self-storage, but it can be a challenge to strike the right balance. On the one hand, you want a place that is safe, secure, and easily locatable by your chosen executor after your death. But on the other, it shouldn’t be so accessible that it could be interfered with or destroyed by someone with bad intentions.
Home safes may fit the bill 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 hold up the entire process for heirs.
At some point in the future, testators in this province may also be able to add electronic storage to their options.
For now, 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 momentum may soon be gathering for Ontario to 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, so it will be interesting to see how things shake out in the western provinces.
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.
