Why fewer wills are being stored in lawyer vaults

TORONTO -- The world is nearly two years into the COVID-19 pandemic and still, uncertainties remain about what the future will look like.

It’s no surprise then, that Canadians have been taking more time to prepare their wills and estate planning documents. A survey conducted by LegalWills.ca earlier this year shows that more than half of participants decided to write or update their wills within the past 12 months because of the pandemic.

For anyone looking to draft or update their own will, it is important to note that common practice for storing these legal documents has started to shift, says Jordan Atin, a certified specialist in estates and trusts law with Hull & Hull LLP. He explains that while lawyers have historically offered their clients the option of storing wills in their office, there has been a greater push towards having clients keep the original versions themselves.

“I think lawyers are starting to reconsider whether it makes sense to do this,” Atin told CTVNews.ca in a telephone interview. “Many lawyers don't want the responsibility of maintaining the safekeeping of it.”

One of the reasons behind this is the burden that comes with protecting these documents, which are technically client property, he says. In addition, plenty of space is required to store them, especially for larger firms with hundreds of wills.

Nowadays, some lawyers will even charge a flat fee to store the original version of a will for their clients, Atin says, although this is not common. Ultimately, he said it is the lawyer’s choice whether to offer that service.

WHY IS THE ORIGINAL VERSION OF A WILL SO IMPORTANT?

Unlike most other contractual documents, where losing the original version may not be an issue if copies exist, wills must be presented in their original form.

“A will, unlike any other document, is revoked by destruction,” he said. “Our law comes from the 17 and 1800s, where it said that a will could be revoked by tearing, burning, or otherwise destroying, so that means that the original is crucial.”

Without the original version, a will is not considered valid. This is according to provincial jurisdiction, but most jurisdictions in Canada follow the same rule, Atin said. The importance of being able to distinguish the original version of a will is also the reason why these documents are typically signed with blue pens. Modern technology has allowed for colour copies to be made, but black ink in a photocopy can be more easily mistaken for the original, Atin said.

Part of the benefit that comes with having a lawyer hold onto the original will is so that it isn’t misplaced by accident, and will be easy to locate after the testator, or person making the will, has died. In these cases, wills are typically stored in fireproof vaults or safes with restricted access.

If someone is storing their will themselves, they won’t need to go to their lawyer to get a hold of it, and it’s possible they might avoid a fee as well. But the downside is that there may be a greater chance of it getting misplaced or destroyed by accident, Atin said.

“I get clients all the time that say they’ve lost their original will,” he said. “I'm sure there are thousands of people who die…[and] actually have a will, but nobody could find it.”

WHAT HAPPENS IF A WILL GETS LOST?

Even if a person’s original will is misplaced or destroyed by accident, it is still possible to prove it exists with a photocopy. In this case, the testator or anyone included in their will must show that it wasn’t intentionally withdrawn. This does, however, involve a court application and proving the case to a judge.

“If you ever lose your will, the first thing you do is send [your lawyer] a note,” he said. “Send [them] an email that says, ‘I lost my will, but I didn't revoke it,’ because now, [they] can show a judge…that you didn't revoke it.”

But more often than not, instead of going to court, testators will simply go through the entire process of signing their will again, usually with an additional fee attached.

With this in mind, Atin says that if a lawyer is offering to hold on to a will, that is typically the safer option. But for those looking to store their will themselves, he recommends keeping it in a safe place that is easy for family members to find, and letting them know where it’s kept.