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Safekeeping of Estate Planning Documents: Digitally Challenged?

As estate practitioners, we continually remind our clients to update their estate planning documents and ensure they reflect their current intentions. A further key consideration is how estate planning documents should be properly recorded, stored and safeguarded.

In order to embrace the digital era, the legal community has made significant strides in digitizing legal documents, particularly in the areas of corporate law (documents are often signed digitally including in major transactions) and document-management. We are frequently asked by our clients whether wills can be digitally signed and stored. Although several jurisdictions, including Nevada and Florida, have introduced or proposed legislation for digital wills (please see our blog on this topic), no legislation has been introduced in Canada. What are the procedures for properly recoding and safely storing original documents?

First, it is important to understand that the process for probating a will or receiving a Certificate of Appointment of Estate Trustee with a Will (a "Certificate") in Ontario requires that the deceased's original Will must be filed with the Court. Only one original will is ever executed. The presumption at law is that if the testator's original Will cannot be located, it is presumed to be revoked. This presumption is rebuttable, but fact-specific evidence must be brought to demonstrate that a will has not been revoked, but instead, misplaced or inadvertently destroyed. The court may allow for an application for probate or a Certificate with a copy of a will, but failing to safeguard a will can result in unnecessary complications, delay and expense in an estate administration, or at the worst, defeat your estate planning intentions.

As a courtesy, many firms including ours, retain clients' original wills and powers of attorney in their vault for safekeeping. If this service is not available or you decide to keep your original documents, you should store the documents in a safe place (somewhere more secure than a bedside table drawer or an ordinary office filing cabinet) to ensure such documents are not lost or destroyed by a natural disaster, such as a flood or fire.

Not only are original documents kept in safekeeping to keep them out of harm's way, but also to prevent their misuse or abuse, such as a third party intentionally destroying a will because they do not favor its terms. For financial powers of attorney, you can sign a direction to direct that your powers of attorney are only to be released by your lawyer upon your incapacity or if capable, at your request, in order to prevent unauthorized and potentially improper use of the financial power of attorney.

As important as safekeeping documents is, it is also essential that the named executors and attorneys can locate your will and power of attorney when needed, understand who to contact, and know where these documents are stored. You may wish to share this information with your named executors, attorneys or selected trusted family members.

In addition, the storage of original estate planning documents in a safety deposit box should be carefully considered. Named executors or attorneys may encounter issues accessing a safety deposit box without the will or power of attorney document proving their appointment, which could defeat the entire purpose of storing the documents to begin with. When deciding where to store your documents, consideration should be given to access to and location of original documents to prevent any future difficulties.

Although we live in a generation where documents are digitally accessible and can be filed in a desktop folder or saved on a hard drive, it is important to remember that original estate planning documents, particularly a will and powers of attorney, require more care and attention. Unless estate planning documents are properly safeguarded, your estate planning can be jeopardized and runs the risk that your intentions may not be properly carried out upon incapacity or death.

While we may have better procedures for digitally storing estate planning documents in the future, for now, proper procedures for recording, storing, and safeguarding original estate planning documents continues to be of primary importance.

-Emma P. Hamilton

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