When setting up an estate plan, it is essential that a drafting solicitor takes the time to work through family dynamics and related challenges to prepare a comprehensive and sound estate plan for the family. The next step of executing the will leads to the question of what should then be done with the original signed document.
The original will should be stored in a safe place. Some law firms offer to retain the original will, to be retrieved by the estate trustee at the testator's death or available for the client, should they wish to review, amend and/or revoke the document. Many lawyers, however, refuse to keep an original will. When the original will is returned to a client, this should be documented by the lawyer, who may wish to suggest appropriate storage options so that the will is available when it is required.
The significance of the original will should be brought to the testator's attention. Some people may not know that the original copy is required for probate and that a copy of the document will not suffice.
Without the original will, an estate trustee will struggle to establish his or her authority to deal with estate assets. Funeral homes may be reluctant to provide a death certificate to an individual who claims to have been selected as estate trustee, but does not possess a will. Financial institutions may not allow access to accounts and related information to an individual when they are not able to present the original will, as executed.
When a will is returned to a client, it should be confirmed with them that they are in possession of the original and that it is their responsibility to keep the will in a safe location. When individuals insist on keeping their will at home, it should be kept within a fireproof box. A preferable option may be a safety deposit box. Alternatively, a will can be stored with the Ontario Superior Court of Justice. What is most important is to ensure that the estate trustee is able to locate the will, wherever it has been kept and however it has been preserved, at the testator's death.
There is a rebuttable presumption that, in situations where a testator was last in possession of his or her original will and the original will cannot be found at death, the will was revoked by physical destruction. Especially where a testator was well-organized and is not likely to have misplaced the original document, courts may rely upon this presumption to declare that the testator died intestate.
With the trend of increasing reliance on computers and paperless record keeping, it is important that the significance of original documents not be forgotten. Absent an original will or power of attorney, considerable time and money will be spent on rectifying the situation.
It is not necessarily fatal to the testamentary purpose that an original will cannot be found. A testamentary instrument can be recreated by way of an Application under Rule 74.02 of the Rules of Civil Procedure. Affidavit evidence can be used to validate a lost or unintentionally destroyed will and its contents. However, the mechanism for preserving testamentary wishes requires the consent of all parties having a financial interest in the estate and the "will" being admitted to probate and presumes the availability of a copy of the will or some other evidence of the dispositions made therein.
Where there is a fight to chase down the original will when it is known by the estate trustee where it is, but an individual or institution is preventing its timely retrieval, courts are, again, able to provide a remedy. An Application can be made to compel that the original will be brought before the court.
Ideally, there would always be an easy transition when someone passes away, with the original will ending up in the hands of a proper person and the estate administration proceeding smoothly. This won't always be the case, as obstacles that prevent estate trustees from locating and retrieving an original will can and do arise. It is comforting to know that, when necessary, the court can step in to allow that the testator's wishes be honoured.
*Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.
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