Lost Wills - Hull on Estates and Succession Planning #178
Listen to: Lost Wills - Hull on Estates and Succession Planning #178
This week on Hull on Estates and Succession Planning, Ian Hull and Jordan Atin discuss the difficulties of losing your Will and how to overcome them.
If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.
Ian M. Hull - Click here for more information on Ian Hull.
Lost Wills - Hull on Estate and Succession Planning #178
Welcome to
Ian Hull: Hi and welcome to Hull on Estate and Succession Planning. We are podcasting on August 25th, 2009.
I am Ian Hull and this is my good friend, Jordan Atin, who has agreed to sit in for Suzana Popovic-Montag again this week. We had a good discussion about your frantic feelings in the airport last podcast and one of the things you raised was this idea of how to get over a legal burden of a lost Will. And I thought today we would like to talk a little bit about this whole concept of a lost Will because that’s something that does happen.
Jordan Atin: Yeah, sure.
Ian Hull: And what do lawyers do and how do we fix that problem? Before we do that, I just want to remind everyone that we have our regular Breakfast Series on September 24th coming up. We have three great speakers: Suzana Popovic-Montag, who will be speaking on joint retainer issues; I’ll be speaking on some recent case law developments and how it affects solicitors and our associate, Megan Connolly, will be speaking. So all the information is on our web page so if you’re interested in either coming or watching it as a webinar which we do, please feel free to contact us or check out the details on the web page.
Alright, so let’s bounce back now, Jordan, if we could and talk about…let’s first of all set the stage. The scenario is in part what we talked about last week, and that is, we’ve done a Will. It’s well done and it’s got no errors in it. It’s been signed properly but for some reason it’s been lost because, for your example, it might be the client takes it home with them and they don’t put it in the safety deposit box and it’s lost. The person dies and does that mean that they die without a Will? Does it mean that we have to deal with the old Will? How do we deal with it? So it’s what we call at law the lost Will and that scenario. So why don’t we talk a little bit about that.
Jordan Atin: Sure. And people often ask, you know, I have a copy of the Will, is that good enough? Well that’s a good question. Sometimes it’s good enough and sometimes it’s not. The way the law works in simple terms is that if you can’t come to Court with the original, then the Court asks one question: where was the original last known to be? Was it in the possession of the person writing the Will, the testator? If it was in their possession, then the Court presumes that the testator, the Will maker, ripped it up, destroyed it intentionally to revoke it. So then if that’s the situation, the Court will say ah ah, you can’t prove a copy because we think that the original was deliberately destroyed and therefore revoked.
Ian Hull: And that’s a pretty hard and fast rule developed by the case law for hundreds of years.
Jordan Atin: Right.
Ian Hull: If you hold your Will and that’s all the other evidence that exists after you die that you were the last person holding it, it’s a very tough burden to get over this presumption that you ripped it up.
Jordan Atin: Right, exactly. Because, of course, destroying a Will…intentionally destroying the Will with the intention to revoke it, is a way of destroying your Will and revoking your Will. So that’s why there’s that presumption.
Ian Hull: And then we go back to the prior Will or we have no Will.
Jordan Atin: Right. And just as an aside, that’s one of the reasons we only sign one original Will because if you had…let’s say you signed more than one original Will and you wanted to revoke it so you destroyed one copy, what would the effect of that be if there was another copy? So that’s why, just as an aside, why we do one Will. But the idea there…so there are certain ways of getting around that burden. So let’s say I’ve given the original Will to the testator, to the Will maker. And we know that there was a fire in the house and the Will maker died in the fire and the whole house was burnt down. Then that evidence would be used to show, to rebut the presumption that she destroyed it on purpose.
Ian Hull: Right.
Jordan Atin: So if we can show that the Will was destroyed unintentionally, or destroyed without intention intending to revoke it, then we’re over that burden and now we can prove a copy. And not only can we prove a copy, as you know probably better than anyone, you can prove where there isn’t a copy. Can you…?
Ian Hull: Well, I mean, that’s a great point. And earlier in my career I had the pleasure of doing that where we had good evidence. And in that case it was a situation where it was last in the hands of the accountant. And so therefore we didn’t have the burden of the ripping up worries and that it was last in the hands of the Will maker but the accountant couldn’t find it. And the accountant’s recollection was what the Will said because the accountant had actually done tax planning around the parameters of this Will. So the accountant is not a lawyer but the accountant was able to say I know that the Will did the following: it appointed so and so as an executor; it gave all of the assets to this person. And so what we did was we wrote our own Will and we went to the Court. And the judge first of all looked at us like, what are you crazy? You’re writing Wills.
Jordan Atin: This is in your handwriting, yeah.
Ian Hull: That’s right, yeah. And we said yeah, that’s true it may be a bit odd but this is the Will of the deceased and it can be proven because we know it wasn’t in the last hands of the deceased. We have good evidence as to what was in it and so we persuaded the Court, quite properly, to agree that that’s the Will of the deceased. So then the estate could go on and administer what turned out to be a fairly complicated estate and it allowed for tremendous tax savings because the gifting was all designed to this one individual. If it had gone without a Will, it would have created all sorts of new tax burdens and problems for the estate. So it was interesting. I mean, that’s the most extreme. Most of the time you’re going to prove a copy, someone’s going to have a photocopy. A lawyer has it in his file. You said in your last podcast that you generally keep a copy of the Will but you give the original to the client. Well, we could go back to you and say give me a copy and I’ll go take that copy and prove it to the Court that it wasn’t ripped up by the deceased or last in their hands, more importantly.
Jordan Atin: And that’s one of the reasons I keep an executed copy. So in other words, it’s not originally signed but it’s a photocopy of the originally signed one so that there’s…because some people just take a copy of an unsigned Will and keep that in their file.
Ian Hull: Yes.
Jordan Atin: I don’t think there’s going to be ever a dispute that this is not an originally signed…nowadays you can pretty much show whether there is an originally signed one. But it’s just a…so it shows that it was signed. It was in fact signed. We don’t have to prove that it was signed. So that’s just another thing.
Ian Hull: And the signature is, you know, gives a judge naturally more comfort.
Jordan Atin: Right because the judge knows that it was actually signed rather than you saying, oh I know it was signed.
Ian Hull: Yes.
Jordan Atin: So, that’s why I keep a copy of the executed Will.
Ian Hull: And it’s a neat point because it’s really just a mechanics thing. Because if you’re going to keep a copy, you may as well keep the copy that was signed anyway.
Jordan Atin: Right. It just means that you have to make a photocopy after it’s signed as opposed to making a copy before it’s signed.
Ian Hull: So it’s a process question more than anything else. So that’s good. That’s a good practice tip. We try to give the odd practice tip and this is what we do.
Jordan Atin: Works for me.
Ian Hull: So that’s fantastic. I mean, I just found that I think a lot of people don’t realize how important an original is. Most people think well nice to have the original but with a Will it is vital and it can be a big problem if you don’t have the original. It means this lost Will process again, though, comes back to your last podcast, and that is, if you lose a Will, we can sometimes fix it. Sometimes not. But it’s expensive and it’s time-consuming and it’s risky that I might not be able to pull it off and a judge might say, you know what, that’s just not enough evidence for me to accept that you’ve got over the hurdle.
Jordan Atin: Right.
Ian Hull: And so from that perspective, you know, we create tremendous uncertainty, absolutely more costs to the administration of the estate. So we now need to come back to your last podcast where you reminded us that, you know, control and custody of this document is important.
Jordan Atin: Yeah.
Ian Hull: And it really is. I mean, everybody has to either, you know, you suggested some suggestions in the last podcast. But people have to, it seems to me, I try to remind my clients that, you know, this isn’t just another control you’ve signed. You haven’t just signed a lease agreement to rent a car. This is a big deal. And so take that document and treat it like it’s a big deal and put it somewhere safe and where it can be found and easily dealt with and distributed and hopefully the original form.
Alright, so that’s great. We appreciate you talking about the lost Will concept today. And always appreciate you coming in as our special guest, Jordan Atin. And taking the time to come on to Hull on Estate and Succession Planning. Again, remind everyone that our Breakfast Series is coming up for September 24th and we would be pleased to have you come or jump on the internet and watch us on the topics that we’re going to be talking about. Thanks very much.
Jordan Atin: Thanks Ian.
You have been listening to Hull on Estates and Succession Planning by Ian
to has been provided as an information service. It is a summary of current
issues in estates and estate planning. It is not legal advice and you are
reminded to always speak with a legal professional regarding your specific circumstance.
To listen to other
