After going to the trouble of sorting out how you are going to bequeath real estate, wealth and sentimental items you've accumulated over a lifetime, what precautions have you taken to be sure the will can be found upon your death -- an event that may be decades and many moves in the future?

Canadians who have a valid will may not see wishes regarding their estate property carried out as they intended if the will cannot be found. The court may consider this situation equivalent to no will existing and apply the provincial laws designed to arbitrarily distribute an estate.

According to British Columbia law firm, Clark Wilson LLP, involving a lawyer in the preparation of a will means the original will can be left with the lawyer in a long-term filing system organized to safely store and retrieve wills. Lawyers also arrange will notices like those filed with BC's Vital Statistics Agency to provide a public record of the document and its location.

A bank safety deposit box is the next suggested storage location, with the caution that if it is rented only in the name of the deceased, there may be delay and inconvenience retrieving the will after death.

Unless you have a fire-proof storage vault or safe at home and are committed to the long-term security of your legal documents, home is not considered a safe place to keep the will.

Not preparing a will, or losing the will, allows others to decide what happens to your real estate, personal possessions and the rest of your estate on your death. Without a valid will, your estate will be divided according to provincial law:

  • The estate will be liquidated and shared among your surviving family members in proportions dictated by law.
  • If you have no relatives, that is you die "intestate," your estate vests in the provincial government and after a period of time, if no claims arise, the value of the estate passes to the government.

Without a will which identifies your chosen executor, the court will appoint an administrator to identify beneficiaries according to the law, without regard to your possible intentions or likes and dislikes.

To ensure your real estate and other property goes to those you wish in the proportions you intend, prepare a will. Professional legal and financial advice will reduce the probability of arguments and legal wrangling that could take a chunk out of your estate or consume it entirely.

Don't delay writing a will because you're nervous about committing to a beneficiary now when you feel you have decades ahead. Even if you write a will leaving real estate to one child, tell them that you are free to change your mind for any reason and destroy that will.

Vancouver-based Clark Wilson LLP provided a recent BC Supreme Court case, Andersson v. Khan, in their newsletter Your Estate Matters, to illustrate how the demonstrated intent to destroy may override a copy of a will: "... Dr. Khan, made a will in 1982 under which one of his sons was a beneficiary. Subsequent to making the will, Dr. Khan and his wife transferred title to their home into joint tenancy with the son. [Under joint tenancy, ownership automatically transfers to surviving owners.] A number of years later, in the context of a falling out between them, Dr. Khan severed the joint tenancy with the result that each of them held an undivided interest in the property as tenants in common [and ownership could be bequeathed]. The court found the severance of the joint tenancy to be compelling evidence that Dr. Khan had changed his mind with respect to the distribution of his estate ... the court would not allow the copy of the lost will to be admitted to probate."

The disturbing element of this example is that having to settle this matter in the Supreme Court probably cost the estate thousands in legal fees. Many Canadian estates are not large enough to finance a legal dispute and have sufficient funds left to carry out the deceased's wishes. Actions like these may even force the sale of real estate that was intended to stay in the family for future generations.

To avoid disputes and the loss of your hard-earned wealth to legal fees, take action to prepare your will with professional legal advice. Then have it safely stored to ensure your wishes will be available to be carried out. Remember, as things change over the decades ahead, the will may, and perhaps should, be amended, but it will be there, just in case.

Source: Clark Wilson LLP

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