The last step of the estate planning process is an important one that is often overlooked: storage. Once the will is signed and the lawyer’s invoice paid, people often consider the process finished. And yet, planning for where and by whom the will is to be stored is one of the most important decisions to make. The executor will require the original signed hard copy in order to administer the estate. If the will was lost or destroyed, the entire estate planning process will have been for naught. Therefore, the deceased’s family/executor of the estate needs to know exactly where to look for the most recent original will. If the last original will is lost, it is presumed revoked.[1]
For this reason, many decide that it is safest to store their will with a lawyer to reduce the risk of loss or damage to the original will. While there is no requirement that the lawyer store the will, many offer this service as part of their practice. Common questions that then arise include: what are the lawyer’s obligations for storage? What if the lawyer moves, dies, or retires? Is the lawyer or law firm required to store the will indefinitely? Many of these concerns can be addressed by instead using a will storage service such as Custodius For Clients | Custodius.
The obligation of storage for the lawyer is an onerous one: the will must be stored in a safe, fireproof and locked facility.[2] The will must be stored indefinitely unless they have an agreement with the client otherwise.[3]
What happens to Wills when the lawyer retires?
When a lawyer retires, he or she has the option of returning the originals to the client, if they can be contacted. Generally, lawyers send notices to clients in advance of retirement advising of his or her planned retirement date and providing the contact information of the firm or lawyer that has agreed to store the original will, if applicable. The client then has the option to either (1) consent to the transfer of the document to the new lawyer or firm; (2) direct the will be sent to a lawyer of their choice for storage; or, (3) retrieve the original will to store personally or elsewhere.
The retiring lawyer is required to continue to store the will indefinitely until the client provides instructions. If the client cannot be reached, the retiring lawyer may transfer the will to another lawyer for continued safekeeping but must then advise the Law Society’s By-Law Administration Services department as to whether the retiring lawyer will continue to hold the wills or provide the name and contact information of the new lawyer.[4] If another lawyer will not agree to assume responsibility for the original wills, they may also be filed with the Court.
Conclusion
An original will is an important document that represents significant time and planning by a client. As the original hard-copy will is required to administer the estate in Ontario, careful thought and planning should be given to where the will is to be stor
ed. Given the onerous obligations on lawyers and the complications that can arise when they retire, other options for storage should be considered to ensure that there is a practical plan in place and that the executor will be able to easily access the will upon the testator’s death.
Learn more about Custodius’ will storage services here For Lawyers | Custodius or contact us at support@custodius.ca.
*This article is not intended to be legal advice and should not be relied on as such. All lawyers with questions or concerns regarding his/her duty to store wills or client files are encouraged to seek legal advice or should contact their insurer.
[1] Succession Law Reform Act, RSO 1990, c. S.26 at section 15(d); Lefebvre v. Major 1930 CanLII 4 (SCC), [1930] S.C.R. 252 at 257. [2] Rule 3.5-2 of the Rules of Professional Conduct and see LSO’s “Guide to Retention and Destruction of Closed Client Files for Lawyers” at Appendix 6 - Area of Practice Specific Guidance on File Retention and Destruction. [3] Ibid. Note that there are separate rules for storage of the entire client file versus an original will or other original client documents. [4] LSO’s “Guide to Closing Your Law Practice”