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What if my Will is Lost Wills and Estates

Date: 03 Jan, 2018| Author: Fred Streiman

At Dale Streiman Law LLP, we offer our clients at no charge the ability to store their original Wills and Powers of Attorney with our office. All clients receive an electronically scanned fully signed copy of the Will, but this is not a replacement for the original Will.

Some of our clients take their Wills and place them in the safety deposit box at a bank, which is an acceptable alternative. What is not acceptable is simply throwing the fully signed Will into a drawer in the hopes that when father time finally calls, it will still be there. If one can lose their keys, one can lose their Will. If no one can find a Will, the courts may very well apply the rules of an intestacy (what happens when you die without a Will) which may very well result in a division of a person’s estate, very different from that which they wished.

However in some circumstances, a scanned copy or photocopy of the Will can be found but just not the original.

There is the ability to seek the court’s approval of a photocopy (signed or not) as being found to be as good as the original Will. This is an expensive proposition and one to be avoided unless there is no choice whatsoever. An example is the recent decision of Leditz v. Hillel, in whicha woman the Testatrix, did a Will in 2010 leaving everything to Hillel. However when she died six years later, no one could find the Will, although copies were available. If the court felt that the Will could not be found because the testatrix intentionally destroyed it with the intent to cancel the Will, she would have left an intestacy. In the event of an intestacy, the terms of The Succession Law Reform Act, will determine who gets the testatrix’s estate.

The test became whether or not the presumptivestarting point that the reason the Will could not be found is that she had intentionally destroyed it had been rebutted or disproved. Strong corroborating evidence needs to be found to disprove this presumption. The court also looked at section 13 of The Evidence Act, that evidence on matters before the testatrix death must be corroborated by strong material evidence. It needs to be independent and materially enhance the probability of the position. Simply put, it must come from an independent source that the testatrix in this case intended until the very day she died that her estate would go to Hillel and that she did not intentionally destroy the Will and legally cancel it.

In this case, there was such corroborating evidence and the photocopy was upheld. Think very carefully as to where your Will will be and we repeat our firm retains at least 50% of the Wills that we prepare.

We also now obtain our client’s written instructionson what is needed to release an original Will or Power of Attorney. Generally for a Will be released, our clients direct us that the executor must appear with a death certificate in hand.

With respect to Powers of Attorney, clients at some time insist that we receive a letter from a physician certifying that our client has become mentally incompetent before we are instructed to release the original Power of Attorney.