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Safekeeping of Original Estate Planning Documents: Hard Copies are Hard to Replace

It is becoming more and more the "norm" in many areas of day-to-day life that in lieu of an original paper copy of a document being given to us during some form of transaction or interaction, the document is instead created and sent to us digitally. Consider for example car rental agreements, sales receipts, monthly phone bills, tickets to a concert or art exhibit, personal income tax returns, charitable donation receipts, etc. It's easy to get in the habit of receiving important documents in this manner, as well as relying on having them at our fingertips and readily available by quickly searching phones, tablets, PCs, external hard drives, cloud storage and email inbox folders, or even accessing these documents online and downloading them if and when needed.

With this flow of digital information, and the ease with which documents can be signed virtually and stored digitally, it is important to recognize and keep track of certain documents for which the original is vital and for which a digital copy is usually not an adequate substitute on its own. Original signed wills (which we will discuss in more detail in this blog post), original signed powers of attorney and original share certificates are all examples of such documents.

Where a person dies leaving a will, the estate trustee's authority to step into the deceased's shoes and administer the estate in accordance with the deceased's instructions and applicable estate law comes from the deceased's will. The original will is usually needed in order for the executor to prove his or her authority to the beneficiaries and third parties such as financial institutions, etc. Further, if the executor must probate the deceased's will in order to administer the estate assets, then generally the original signed will must be submitted to the court before the court will proceed with processing the probate application and issuing a certificate of appointment to the estate trustee.

Based on Ontario case law, if a deceased's original will cannot be located after death, and if it can be shown that after it was signed but prior to its disappearance the will was traceable to and last in the possession of the deceased person, the deceased is presumed to have destroyed his or her will with the intent to revoke it. If a will is presumed destroyed, then the deceased is considered to have died intestate--or without a will. The deceased's personal property and real estate in Ontario would then be distributed based on Ontario's intestacy rules set out in the Succession Law Reform Act, and not in accordance with the deceased's wishes contained in the missing will. This outcome could have unintended and undesirable consequences (e.g., for a surviving common law spouse who may have been named as a beneficiary under the will but who would not automatically inherit pursuant to the current wording of Ontario's intestacy rules).

The presumption that a deceased person destroyed his or her will with the intention of revoking it if the original signed will can be traced to the deceased before his or her death and cannot be found after death can be rebutted with appropriate evidence to the contrary, depending on the particular facts of the situation. In Ontario, if an original will is lost, there are court processes available for proving the lost will in court. For example, if a photocopy of the signed will has been located, the estate trustee can commence a court process in order to have the photocopy of the will proved as the deceased's last will.

Proving a lost will adds unnecessary delays and expense to the administration of an estate, not to mention increased frustration and stress for the estate trustee and beneficiaries. There is also no guarantee that the lost will will be successfully proven in court.

While it may be convenient to have digital copies of estate planning documents such as wills and powers of attorney on hand, original signed copies are crucial. Accordingly, it is imperative that the originals be carefully safeguarded and appropriately stored in a secure location for future use. When stored, these documents should be protected from environmental damage (such as fire and water damage), from theft, as well as be accessible to the estate trustee after a person passes away. For example, the law firm that assisted with the preparation of the will may also offer to store original estate planning documents in its vaults as part of its client service, which is also helpful for keeping track of the current versions of estate planning documents when changes need to be made.

- Jenny K. Hughes

In our next post, we'll discuss current developments in the U.S. regarding the estate tax and other tax changes relevant to private clients, and what impact proposed changes may have on planning for people with U.S. connections.

The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal or tax advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.

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