The challenge of keeping your Last Will and Testament safe

We seem to have touched on this topic a few times in this blog; how do you keep your Last Will and Testament safe and private, but accessible to your Executor at the appropriate time? It is a real balancing act that weighs up security, with the convenience of access for the Executor as well as the ease of updating and maintaining the document.

a lost Will in Tuscaloosa

In the last few days and weeks the issue has become more prominent after the tsunami in Japan, the tornadoes in the US and the series of earthquakes in Asia. I read today of a Facebook group dedicated to “Pictures and Documents found after the April 27, 2011 Tornadoes” with the hope of reuniting important documents with their owners, and these documents include property deeds and a number of Last Will and Testaments.

We actually received calls from relatives of people impacted by Hurricane Katrina in 2005 asking how they would attempt to locate a person’s Will after this type of disaster. And really there is no good answer that can be given.

Your options currently are to store your Will at home, maybe in a fireproof safe, or to store the document at a lawyer’s office or with a bank. Each option has its advantages and disadvantages, but in a catastrophic situation, none of these options is likely to help. We wrote previously about the proliferation of Will registries and how ineffective these services are, as they most often allow you to store a note with a description of where the document is stored, not the document itself (we actually feel that many of these services are close to being scams).

Storing your document at home is the best way to ensure that your Executor can access the document at the appropriate time; however, there doesn’t necessarily have to be a natural disaster for you to lose your document; a flood or house fire may put your Last Will and Testament at risk. Storing your document in a lawyer’s office probably makes the Will more secure and often documents are stored offsite; however, a lawyer’s office is as likely to fall victim to a tornado as much as a home, so it is worth asking the lawyer’s office exactly where the documents will be held. One cautionary note though is that your Executor needs to know where the document is stored, and it is not uncommon for law offices to merge and be acquired by other offices and so your Will could potentially outlive your law firm (it actually happened with my family).

Tuscaloosa, Alabama

Minamisanriku, Japan

The bank is the most secure, but your Executor faces a conundrum; how can they gain access to the deposit box, when the document that can provide them with the authorization sits in the deposit box. It is actually the least convenient of all options, and again, your Executor would have to know how to gain access at the appropriate time.

A quick word on copies. One seemingly obvious way of protecting your documents is to make a number of copies and store them in all kinds of different places. This unfortunately doesn’t work – there should only ever be one original document; copies should be clearly marked as copies. Every time a Will is updated, previous versions including all copies, should ideally be destroyed, but even if this isn’t done, a newly signed and dated Will effectively cancels (revokes) any previous Wills.

Unfortunately until the law manages to catch up with digital signatures, cloud computing, data encryption and all of the other technologies available to us today, a signed piece of paper is the only legal form of a Last Will and Testament, and as we know, pieces of paper don’t do very well in floods, winds, fires and exposure to countless other natural elements …. !

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Keeping up with the law when writing your Last Will and Testament

One of the common arguments made by lawyers against preparing your own Will is that “the law changes all the time and so your Will may no longer be valid”. I think it’s worth exploring this statement a little bit to see if there is any substance to the claim.

Let us start by discussing what makes a document a legal Will. If you type on a piece of paper “this is my last Will and Testament”, name an Executor, describe how you wish your possessions to be distributed, and then sign and date the document in the presence of two witnesses who also sign, you have a basic, but perfectly legal, Last Will and Testament. This is of course not recommended, because there are other matters to include; for example, alternate plans, plans for minor beneficiaries, guardians for minors, and then of course there are your legal obligations within the Will, for example, providing for a spouse or dependents. Very quickly, you can see why the law has an impact on the creation of a Will, and this is why we provide three very different services; www.legalwills.ca, www.uslegalwills.com and www.legalwills.co.uk for our Canadian, US and UK customers respectively. Each service is shaped by the law for that jurisdiction and within the US and Canada there are variations for each Province and State.

The legal variations from one jurisdiction to another include things like the age at which you can make a Will, the number of witnesses required to sign, and what you can legally do within the Will, for example, disinherit a spouse. In fact, most of the variations in the law affect the help text, rather than the final document itself. So how likely is it for a law to change that would make a Will kit invalid?

Laws do change. One of the most high-profile estate planning changes has been with same-sex marriage; a few years ago in most jurisdictions if a person died without a Will, and they left a same-sex partner, the surviving partner would have no claims on the estate, even if they had co-habited for decades. This is changing and the law is recognising the rights of surviving same-sex partners. However, this change in the law does not actually affect Wills, it has a major impact on people dying without a Will.

The other laws that change are inheritance laws, particularly as it relates to taxation. The US has seen almost annual changes in estate tax law from the 2010 repeal to the 2011 $5 million threshold. But again, these changes do not affect the creation of a Will (although it may cause people to look at different estate planning strategies).

Is it therefore possible, as some estate planning lawyers claim, that you could pick up a do-it-yourself Will kit that would be invalidated because of a change in the law? For the most part, “fill in the blanks” kits are so vague that it would be difficult for them to be invalidated. They are often not much more than a blank sheet of paper, and so it would take a radical law change to make the kit out of date. Of course, any accompanying guide could be outdated, and also, the testator’s plan could be illegal, but the kit itself would probably not have to be pulled from the shelves.

However, once in a while a law is changed that could make kits no longer legal, and this type of law is coming into effect this year in British Columbia. Before this law change, estate planning in the Province was for the most part based on the Wills Act of 1837, and the last major review was in 1920. The change of the law is significant and includes things as simple as changing the term “testator” to “will-maker”, but the more significant change is the philosophy to ensure that a deceased person’s last wishes are to be respected, even if the document containing those wishes does not strictly meet the requirements of a will. This allows the court to correct errors in the formal execution of a will. Furthermore the law is changed to no longer automatically revoke (cancel) a Will when a person gets married. It also allows a person to write a Will at 16 (rather than the current 19). The list goes on, and there are many other interesting changes to the law that need to be considered by will-makers.

Of course, it’s important to note that no law would invalidate all Wills made before the Will came into effect.

We are conducting a through review of our services to ensure that any changes required by this new law are updated for our BC customers. There is a good chance that a kit purchased in a stationery store would not undergo this type of review, but of course, legal professionals working in BC certainly know about the law changes.

In summary to answer the initial question; is it possible for a do-it-yourself kit to be invalidated by a change in the law? possibly. And this is just one more reason why we steer people away from kits like this. Either using the services of a legal professional, or using an interactive service like the one at LegalWills is probably the best way to guard against this.

Another Last Will and Testament rewritten by a judge

A couple of months ago we posted an article after a BC judged overturned a man’s Will because the man’s daughters had a “valid moral claim to share in the family wealth.” We explained in our article that this ruling actually forced us to change parts of our service and help text because in Canada there is generally no requirement to leave anything to independent adult children. The ruling reinforced the position that leaves British Columbia out of step with the rest of Canada.

Over in the UK last week, a similar thing happened that is actually even more difficult to understand. In the BC case the judgement was influenced by the fact that the testator seemed to be a disagreeable chap. He treated his daughters very poorly in comparison with his son, and the judge didn’t look kindly on his lifetime of misogyny. Our article questioned this position because individual attitudes are created through experiences and no judge can place themselves in the heart and mind of another person. In our view, just as the man was perfectly entitled to give all of his wealth to his son while he was alive, he should have been equally entitled to do this after he died through his Last Will and Testament.

So to the UK case. This time Melita Jackson died, leaving nothing to her only child, her daughter, Heather Ilott. She left an estate worth £486,000 to the Blue Cross, the Royal Society for the Protection of Birds, and the RSPCA. She even appended to her Will an explanation saying that they had been estranged since her daughter eloped at the age of 17, and the rift had never been healed in her lifetime (some 26 years). The case was first heard by the district courts who awarded her £50,000, but not content with that judgement, Ms Ilott took it to the high courts who ruled in favour of the animal charities and left her with nothing. So it went to the appeals court who over-ruled the high court and back the district courts decision; leaving open the option of a further appeal to increase the district court’s judgement.

It’s a complicated back and forth, but our position on this is the same as that of the solicitor representing the animal charities;

“Solicitor James Aspden, representing the three charities, called the ruling hugely disappointing. “The court of appeal has reinterpreted 30 years of law and left in its place a lack of clear guidance, which creates further uncertainty about a person’s right to leave money to people or organisations of their choice,” he said.”

It seems that we now have to re-write our service and help text for the UK version of LegalWills. According to this ruling, if you are estranged from your child and have had absolutely no contact with them for over 25 years. You then choose to leave your estate to charities that mean something to you personally and write in your Will your reasons for doing so. A district court may still re-write your Will on your behalf.

It actually comes as a surprise to us that  the court determined that a daughter’s need for money is of greater legal standing than a charity’s need. It also begs the question as to whether it was because the estate was going to animal charities that influenced this ruling or whether the testator would have been allowed to leave her estate to human charities, or even to a close friend. It’s now a very tricky legal situation to navigate for estate lawyers in the UK.

And this article is nothing to do with preparing one’s own Will or using a legal professional. I think most estate planning lawyers and solicitors in the UK would have felt that this Will and accompanying letter would have been incontestable. This ruling has left many solicitors wondering how they can ensure that these types of wishes are fulfilled.