Where is your orginal will, does your executor know where it is? Is it easily accessible?
You can save your beneficiaries significant additional expense and delay if you ensure that your original will is easily accessible.
And eliminate the risk that it cannot be found when your executor comes looking for it, leading to a legal presumption that you destroyed it on purpose to revoke it.
One issue is easy accessibility.
The original will is the starting point for the probate process.
Search my archives for a series of columns with “do it yourself” instructions about that process. If you have difficulty, let me know and I’ll help you find them.
Leaving your will with the lawyer who prepared it doesn’t guarantee easy accessibility. He or she might have changed law firms, taking your will with them. She might have retired or died. The law firm might no longer exist.
Maybe your mind is at ease on this point because the lawyer has systems in place, reaching out to you annually to ensure they have your current address and contact information, and confirming that they are continuing to hold onto your original will.
If not, I recommend that you track down your will and move it into the hands of a law firm that does have those systems.
If you decided to take your original will with you to keep it safe on your own, I recommend that you reconsider.
Fires do occur.
I recently helped an executor whose mother’s will went up in flames when her home was destroyed in the McDougall Creek Fire. Had I charged her for my services, it would have been an expensive process tracking down a copy of the will from a retired notary and preparing a Statutory Declaration for the notary to affirm the validity of the copy.
A fresh will could not have been made because the mother no longer had the capacity to make one.
If you have it tucked away in a fireproof safe, does your executor know where that is and how to access it?
If you’re relying on a safe deposit box, have you arranged for your executor to have easy access on your death? Or will they have to produce a Death Certificate to the bank along with proof (without the original will because that’s in the box) that they are your executor?
Please ensure that your original will is easily accessible to your executor, and that you keep your executor informed about where it is. This will save them expense and time trying to track it down.
What happens if your original will cannot be found?
Much more expense and delay.
The recent case of Galloway Estate (Re), 2023 BCSC 1204, tells such a story.
James Galloway’s original will could not be found and a legal fight ensued.
On one side of the fight was the beneficiary James had named in his will, a close family friend named Sharon.
On the other side was his sister Joan, with whom he had been embroiled in bitter litigation. Ironically, that litigation had been about their father’s estate.
Joan stood to benefit if there was no will because James had no spouse, no children and his parents had predeceased him. Absent a will, his only sister Joan would receive his estate.
Interesting fact that cynical folks will find relevant: Joan was the first to search James’ home for a will. Surprising that the will couldn’t be found?
The named beneficiary, Sharon, faced a legal presumption. If you keep your original will in your possession and it cannot be found, the law presumes that you must have chosen to revoke it by destroying it.
That legal presumption can be rebutted by evidence pointing away from a purposeful destruction of the will. Fortunately for Sharon, she was successful in marshalling that evidence.
But the legal fight, costing tens of thousands of dollars, would have been avoided if the original will had been kept safe, accessible only to James’ executor.
I can’t speak with authority about how other lawyers do things, but I expect that it’s common practice for client wills to be kept in a locked, fireproof safe. So long as there’s no charge for that service, and you are contacted annually to maintain an ongoing connection, I recommend that you take advantage of that service.
Paul Hergott
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
