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Lost your will?

Posted by admin on June 24, 2010 in estate planning

How many original copies of your will should you sign? Ask 10 lawyers  the same question and you’ll probably hear  11 different answers (the 11th answer being “what do you think the answer is?”). However, on the question of how many wills to sign, many wills and estates practitioners tend to think the answer should be only original one.

The answer of one traces back the problem of the lost or revoked will. Traditionally, if someone wants to renounce the terms of the will (short of marriage which automatically deems a will invalid unless made in contemplation of marriage), you destroy it but tearing it up, burning it, striking it through with pen or some other defiant act of destruction. The problem is that if more than one original of a will exists, especially if other originals are in the hands of beneficiaries, the will-maker (known legally as a testator) has to track down and destroy each and every copy of the will.

A beneficiary who may have their interest diminished or written out of the will replacing the will intended to be destroyed can simply keep the will and, upon the death of the will-maker, destroy the new will and assert that the old will is still valid. Given that this is the only original copy of any will left, old or new, the terms may actually apply. Dead man tell no tales after all.

This situation sounds like a typical law school question but law school questions are grounded in some fact situation, however absurd, that actually occurred.

The flip-side of the one will answer though is what if you lose the only copy of the will? The issue is that, in many jurisdictions, there is a presumption a lost will is a renounced will and the deceased died without a will (this can be over-turned by evidence the will-maker really wanted the lost will to be valid and binding on death).

The practical solution is to have one will signed. Give it to someone for safe-keeping (an advantage of hiring a lawyer to draft a will; they have a professional responsibility to ensure it is not lost or destroyed). Keep a copy yourself which is clearly marked copy since even custodians of wills do lost them. If the will needs to be changed, simply inform the lawyer or the custodian of the will to destroy it (written evidence of your intention to destroy a will may be enough in some jurisdictions to renounce the provisions of the previous will).

One of the more cleaver technological solutions I have also heard is scan the copy of the will onto a USB card and put the card into a safe and attach to it a note, which is dated, indicating that this is an electronic copy of your will and if the original is lost, you did not mean to renounce the will and a scanned copy is found on the USB card.

It is not the perfect solution but it minimizes the risk of having too many original wills and losing the one copy.