Keep estate planning documents safe

Financial, tax and estate planning professionals encourage their clients to ensure their estate planning reflects their current intentions. A key consideration that’s often overlooked is how estate planning documents should be stored. Without proper measures, all the benefits of planning may be lost.

Although digital copies of documents and agreements appear to be the norm today, original estate planning documents require more care and attention. Legislation governing digitally signing and storing electronic wills has been introduced or proposed in Florida and Nevada, but jurisdictions across Canada have a long way to go in this regard. At least for the near future, clients will need procedures for safely storing original paper documents.

In order to probate a will or receive a Certificate of Appointment of Estate Trustee with a Will in Ontario, the deceased’s original will must be filed with the court. If a testator’s original will cannot be located, it is presumed to be revoked. This presumption is rebuttable, but fact-specific evidence must be brought to demonstrate that a will has been misplaced or inadvertently destroyed rather than revoked.

There are exceptional circumstances where an application for probate or a certificate can be made with a copy of a will. In the case of Levitz v Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253, the deceased was a 96-year-old woman with a $7-million estate who had drawn up a will to designate a long-term care centre as her sole residual beneficiary.

The estate trustee could not locate the original will at the time of death and brought a court application to determine whether the deceased had intentionally destroyed her will. The court held that, based on the evidence presented, the will was likely misplaced and the deceased did not intend to revoke it. The court ordered that a copy be probated as her last will and testament.

The case highlights the complications and expense when a will has not been safely stored. As a courtesy, many estate planning lawyers retain clients’ wills and powers of attorney in safekeeping. If a firm does not provide this service, or if a client does not wish to leave their original documents with their law firm, they may decide to keep them in a secure place at home or in a safety deposit box at their financial institution.

If clients decide to hold their original documents, it is important that they are not placed in a bedside table drawer or in an ordinary office filing cabinet. They need to be protected from natural disasters. A fire- and flood-proof safe is preferable.

Another reason for safekeeping is to prevent original documents from being misused or abused: a third party intentionally destroying a will because they do not like its terms, for example. In order to prevent unauthorized and improper use of a financial power of attorney, a direction can be prepared and signed by the client to direct that the financial power of attorney is only to be released by the individual’s lawyer upon the client’s incapacity or, if capable, at their request.

As important as safekeeping documents is, it’s also essential that the named executors and/or attorneys are able to readily locate the documents when needed, and that they understand who to contact and where the documents are stored. Clients should consider sharing this information, if appropriate, with the persons they have named.

Lost or misplaced wills create unnecessary delay and expense. The client’s planning is jeopardized and their intentions may not be carried out. Although we may eventually have better procedures for storing and registering estate planning documents in central databases, for now, proper safekeeping of original estate planning documents is critical to ensuring your client’s wishes are properly followed upon incapacity or death.

Margaret O’Sullivan

Tax & Estate

Margaret O’Sullivan is founder of O’Sullivan Estate Lawyers LLP.