A recent poll conducted across Canada says more people are storing their wills vs. keeping originally signed wills in the Lawyer Vault.
Why is the shift happening?
It is partly the will-makers themselves causing this to happen. Many people during the pandemic prepared wills through remote preparation or an online will kit of some sort. In that case, with no lawyer involved there is no option to store your wills in their vault. For those people, now that the world has opened up, I would suggest taking those wills to a lawyer for review to be sure the will is valid and that the will maker’s intent is what the will set out.
The shift from vault storage is also coming from some lawyers. An original will is client property, and a lawyer holding a will for safekeeping has the responsibility for that. Also, vaults take up space, and some lawyers are now working remotely and the shift to less formal office space is also directing this shift.
I personally still advocate for will makers to store their will in the lawyer’s vault. People move, we become forgetful as we age, and fires and floods seem more of a risk now – the original stored in the lawyer’s vault is good peace of mind.
Lawyers’ vaults often outlive lawyers – for example, if I died tomorrow, I already have appointed another lawyer as guardian for those wills and the law society would be notified of that. A will-maker simply needs to contact the law society to track down the lawyer’s vault and who is currently in charge of that if something were to happen to the lawyer or the firm.
Is there a cost to storing wills in a lawyer’s vault?
That is not traditionally the case. Usually, as part of the estate planning process, storage of the original will is included in the cost. As are the formalities of releasing the will to the executors at the will maker’s death. With the increasing expense of storage and office space, some lawyers are charging an additional flat fee to store the original signed will. That would be something to ask when a person is inquiring about a quote for estate planning.
Why is it important to safeguard your original will?
The will is the only formal document that I am aware of that must be presented in its original, unaltered form to be valid. The main reason for that is that it is also the only formal document that can be revoked by the will-maker simply by destroying it – tearing it in half, burning it, crossing it out.
These are all ways a will-maker can revoke their will – you wouldn’t want your beneficiaries to think that you revoked your will simply because it was not safeguarded and had been destroyed. That is why safeguarding the original will in its unaltered form is critical. Also, the probate office at the courthouse needs to have the original, unaltered will to process the probate. Any alterations, even taking the staple out of the corner, can delay the probate process. The executor will have to explain as to why there was an alteration – handwriting, tear or rip, staple removed – and if unsatisfactory, can result in a court hearing and potentially the will being declared invalid. Storing your will somewhere safe, accessible, and secure from destruction is all key.
What happens if the original cannot be located?
This happens more often than anyone would like. We get people whose loved one has passed away calling all the time about not being able to locate the Will. In many circumstances, they thought there was a will or it had been discussed, but it has been lost over time. This can be salvaged in some circumstances.
A court hearing would be required and evidence presented as to what the will said and that it had not been intentionally revoked by the will-maker. This can be very difficult to prove. Having a photocopy of the original signed will is a good start. However, without the original will and a very logical explanation as to why the will is gone (like a fire), the court could very well be left with the conclusion that the will-maker destroyed it themselves with the intent to revoke it.
Having a lawyer testify that they prepared the will and saw the will-maker sign it is also good evidence in a regular, run-of-the-mill probate matter with no competing interests involved. However, if the potential beneficiaries disagree in any way, it will likely end in a court hearing. If the will cannot be proven to have existed and is still valid, then the legislation applies that divides the estate according to a formula that divides us.
That is not always the way the will-maker wanted their estate distributed and requires extra steps in the probate that require time and money. This goes back to why I still advocate for having a will prepared by a lawyer and stored by a lawyer – in the end, the cost to fix any mistakes or questions outweighs any cost or time spent doing it correctly in the first place.
