In Ontario, there can only be ONE copy of the original Will. If you look at the first sentence of your Will, it’d say that a new Will would revoke the previous Will. This is to prevent the Court from receiving conflicting instructions regarding who is to be your executor and your beneficiaries, and what the distribution rules are you set up (aka who gets what).
“Original” means that this copy has the wet ink signature of the testator (person who is leaving the legacy), two witnesses (who have nothing to gain from the Will; aka who are not beneficiaries, executors, or their spouses), and a commissioner who is a licensed lawyer in Ontario.
When we pass, the Court wants to receive this ONE original copy. If this copy is lost, then the process of receiving your inheritance would be much harder, more expensive, and filled with delays.
So who is supposed to keep this ONE original copy? Basically, you have three options for storing the original copy of a Will.
Keep the original Will to yourself in Ontario
Advantage: When we pass away, our executor should be able to easily find the original Will in our home or safety deposit box. Please do not leave your Will in the bank’s safety deposit box unless that box is joint with the executor. Otherwise, when you pass, it’s very hard to take that Will out of the box.
Disadvantage: It’s easy to lose or damage the Will, especially when we move to a different place.
The lawyer who wrote the Will keeps the original copy
Advantage: Usually, the lawyer who drafted the Will can also handle the probate application and estate administration after we pass away. In fact, I strongly recommend you ONLY hire lawyers who have experience with probate and estate administration to write your Will, as they are the only ones with practical experience with what comes after and can best plan your estate. Because of this, they will unlikely lose or damage your Will.
Disadvantage: If your executor or beneficiaries do not like the lawyer who wrote the Will for you, then they can choose not to hire that lawyer for the probate and estate administration that follows. In that case, getting a new lawyer to get the Will from the old lawyer may be an unpleasant battle. While the original lawyer is legally obligated to deliver the Will, this will likely cause delays.
Also, if the lawyer who wrote the Will retires, it can be difficult to find them again.
The Court keeps the original Will
Advantage: The Court will unlikely lose or damage your Will. And the Court won’t retire or disappear.
Disadvantage: There is a small fee for storing the Will with the Court. But that’s the minor issue. The bigger challenge is that getting the original Will from the Court is slower and more troublesome. There is a process and a queue you must follow, which can cause frustration and delays when your beneficiaries need to start probate immediately to pay urgent expenses such as funeral costs, mortgage payments, or probate legal fees.
While there is no perfect solution, we hope this analysis will help to guide your decision on Will storage. For any questions regarding Wills, Trusts, Probate, or Estate Administration, please click HERE to book a call with us.
