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Retention

There should only be one original of a will, and it is very important to file the original when applying for probate.  Therefore, it is very important to keep the original will in a safe place where it can be easily located when needed.

There are three options:

  • Keep it yourself. If you choose this option, you should file the original will in a safety deposit box, safe, or similar location.
  • Leave it with your lawyer. This was the norm at one time.  It has advantages (safe keeping and security) but in light of people’s mobility and longevity, is not without some downsides.  The key question to ask yourself is whether, under the circumstances, it is realistic to assume that when the will is needed the survivors will be able to locate the lawyer or law firm that has custody of the original will?
  • Deposit it with the Court. For $20, you can deposit an original will for safe keeping with the Courts in Ontario.  We think that this is a very interesting option, especially if you tell folks what you have done.

Revocation

Unless you are doing ‘multiple wills’ (see Multiple Wills, below), generally you should revoke all prior wills when you make a new one.  Revocation should be done expressly in the text of the new will.

Destruction

A will that is destroyed by the testator is revoked.  You can revoke a will be tearing it, burning it, or the like.  Generally, if you make a new will you may wish to destroy previous ones.  However, if there is any concern about the validity of a new will, then retaining a prior valid will can be helpful.

Loss

Normally, only an original will can be probated.  If the original has been lost, the presumption is that the testator destroyed it and thereby revoked it.  This presumption can be overcome, but with considerable difficulty.  If a will cannot be located, it is common to advertise, especially to local lawyers, to try to locate it.  It is very difficult to deal with a lost or misplaced will, and thus it is very important to keep original wills in a safe location while also ensuring that they can be located when required. If you cannot locate a lost will, and cannot rebut the presumption that it was intentionally destroyed, then the estate will be administered in accordance with the next previous will, or if there is none, as an intestacy.

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