Avoid losing your will

Sherry Ann McGregor
Sherry Ann McGregor

December 30, 2019

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It goes without saying that a will is a very important document that should be carefully stored and that every effort should be made to prevent it from becoming wet, soiled, or torn. Most important, great care should be taken to ensure that the will can be easily located once a loved one passes away.

Below are some useful tips to ensure that your wishes as set out in your last will and testament can become known once you pass away:

1. Once a will has been signed, at least one photocopy of that will should also be made or it should be scanned.

2. The original should be placed in a properly labelled, sealed envelope that confirms its contents, and that envelope should (ideally) be stored in a vault or in a safety deposit box. Many attorneys-at-law store original wills for their clients.

3. The photocopy should be stamped or labelled as a copy and the location of the original will should be written on it.

4. The photocopy of the will should also be placed in a sealed envelope and given to one of the executors named in the will or to a close relative.

5. It is also very helpful to store a list of assets with your original will. That list should include the volume and folio numbers for land titles, bank, or investment account numbers and life insurance policy numbers, and where the titles or certificates can be located. This reduces the searches that must be conducted.

Best-laid plans

As Robert Burns said, “Even the best-laid plans of mice and men often go awry.” In other words, a will may be lost, damaged, or destroyed and, although that poses a challenge, it may not be an insurmountable one. The fact is that a court may accept evidence of the contents of the will, if the original will cannot be found. However, that court must first be satisfied that the missing original will remain the deceased person’s valid last will and testament at the time of death.

Due to the fact that a will does not take effect until death, a testator or testatrix may alter or revoke his or her will numerous times. One of the most common ways to revoke a will is by preparing a new will that includes a clause that states that, “I revoke all former wills”. However, an equally effective method of revocation is the destruction of that will by the testator or the testatrix, who may tear or burn it with the intention of revoking it.

When an original will cannot be found after the testator or testatrix has died, the question that is immediately asked is whether the will was revoked by him or her. That revocation will be presumed if the original will was last in the possession of the testator or testatrix. In any event, evidence may need to be led as to whether the testator or testatrix had expressed an intention to destroy that will.

If a court is prepared to accept that a deceased person had a last will and testament at the time of death that had not been revoked, evidence as to the contents of that will may be accepted if the original will cannot be found. The quality of that evidence may vary from case to case. In some cases, a photocopied or a scanned copy of the will or a completed draft may be accepted, while in other cases, the person who prepared the will may attest to its contents.

Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com.

Sherry Ann McGregor

Author

Sherry Ann McGregor

Sherry Ann McGregor is a partner, mediator, and arbitrator in the firm of Nunes Scholefield DeLeon & Co.

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