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Retention

There should only be one original of a will, and the original is “required” when applying for probate. Therefore, it is very important to keep the original will in a safe place where it can be easily located when needed and without being tampered with or destroyed nefariously. It is important to tell people where your will is located. Where appropriate, it is useful to share the contents of the will – copies of the entire signed will, with as many beneficiaries as suitable. When a will cannot be located the increase in expense and delay for the beneficiaries is significant, and the entire estate plan may be voided.

There are three options for storage:

  • Keep it yourself. If you choose this option, you should file the original will in a safety deposit box, safe, or similar location.
  • Leave it with your lawyer. This was the norm at one time. It has advantages (safe keeping and security) but in light of people’s mobility and longevity, is not without some downsides. The key question to ask yourself is whether, under the circumstances, it is realistic to assume that when the will is needed the survivors will be able to locate the lawyer or law firm that has custody of the original will?  Will they know who had it?  Will that lawyer still be practicing?
  • Deposit it with the Court. For a small one-time fee, you can deposit an original will for safe keeping with the Courts in Ontario. We think that this is a very interesting option, especially if you tell folks what you have done.

Copies & disclosure

There is nothing wrong with making a copy of your properly signed will.  If the original is lost, it may be possible (at some additional expense and complexity) to probate the signed copy.

There is  nothing improper with sharing the contents of your will with the executor.

While some people prefer to keep the contents of their will secret, there is nothing improper about sharing the contents with the beneficiaries and anyone excluded.  In fact, generally, wills that come as a surprise or a shock to beneficiaries and excluded children invite litigation.

There is nothing wrong with sharing the estate plan in advance with your beneficiaries and professional advisors.  Often, this can assist them to provide the best possible advice, and to minimize taxes and other difficulties for all parties.

Revocation

Unless you are doing ‘multiple wills’ (see Multiple Wills, below), generally you should revoke all prior wills when you make a new one. Revocation should be done expressly in the text of the new will.

Destruction

A will that is destroyed by the testator is revoked. You can revoke a will be tearing it, burning it, or the like. Generally, if you make a new will you may wish to destroy previous ones. However, if there is any concern about the validity of a new will, then retaining a prior valid will can be helpful.

Loss

Normally, only an original will can be probated. If the original has been lost, the presumption is that the testator destroyed it and thereby revoked it. This presumption can be overcome, but with considerable difficulty. If a will cannot be located, it is common to advertise, especially to local lawyers, to try to locate it. It is very difficult to deal with a lost or misplaced will, and thus it is very important to keep original wills in a safe location while also ensuring that they can be located when required. Accordingly, we strongly recommend making an electronic copy of the completely signed will.

Wills & Marriage & Divorce

A will is automatically revoked upon your subsequent marriage, unless the will was made in contemplation of the marriage (ie. Specifically referred to the marriage and your intention that the will remain valid after the marriage).

A will is not automatically revoked by a divorce. Instead, it is read as if your ex-spouse died immediately prior to your death. Thus the ex-spouse as executor and beneficiary but leaves the rest of the will intact, for better or worse. Generally, if you get divorced, you should immediately do a new will and revoke all prior wills.

 

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