What if you can't find the lawyer who drafted the will?

I received a note last week from a reader whose mother had passed away. He has an unsigned copy of her will, but said he can't find the original will because he can't find the lawyer who drew it up in 1987.

I assume that he has already searched the house thoroughly, and has tried local directories and google to locate the lawyer.  However, chances are good that in the last 25 years the lawyer has retired or possibly even passed away.

This is one of many, many reasons not to rely on a will that is 25 years old, but I'll leave that topic for another day. A lot of you are finding out every day that it's pretty darn hard to find a will this old. I have a couple of suggestions for you.

First of all, ask at the bank whether the deceased person had a safe deposit box. This is a very popular place to hold original wills. Note that if they do have the original will, they won't release it to anyone but the executor named in the will.

If the lawyer who drew the will worked at a firm (as opposed to working solo), call the firm and ask about the will. Normally when a lawyer retires or passes away, the firm will take possession of files and other items such as wills.

If the lawyer worked solo or if the firm can't help, call the Law Society (not the Canadian Bar Association) for the province where the deceased lived. Ask if there is any information about whether the lawyer has retired, and if so, whether anyone was appointed to look after his or her files.

Even if he finds the original will, the problems aren't over. If the will is being probated, there has to be an affidavit or proof of will (the form varies between provinces) attached to it to give evidence of proper following of the formalities of signing the will. The odds are against that document being attached to the will. It's common practice today to attach the document at the time the will was made, but that wasn't the case 25 years ago.

Storing your documents in a safe place

Last week I met with some clients to review their existing wills. I met them in their bank branch because they planned to take the documents out of the safe deposit box at the branch, and it would be convenient for all of us to then meet right there. However, when they opened the box they discovered their documents weren't in it. I was concerned, but they assured me that really the documents could be anywhere, they really couldn't remember, and they had only guessed that maybe they'd stored them in the safe deposit box.

I wish this was an unusual situation. However, plenty of clients over the years have told me that they really can't remember where their original wills were being kept. This is troublesome, since it seems to me that if the client himself can't locate the will, there isn't much hope that the executor will ever find it.

The bank safe deposit box is a good place to store important legal documents such as your original wills. Perhaps these clients intended to store theirs there but never got around to it.

Other good storage places are the vault at your lawyer's office (if they offer that service - not all wills lawyers do), the vault at your trust company or a locked safe in your own home.

Less appropriate (but unfortunately still popular) storage places are: an unlocked cabinet in your home, your sock drawer, in the trunk of your car, under the mattress or in the freezer. When someone hides their will in a safe place that nobody but he can find, he forgets that when the will is needed, he's the only one who won't be around to say where the document can be found.

Wherever you choose to store your will, you should choose a place that keeps your document safe from fire, water, theft or loss. It's also important to protect it from nosy people who have no business reading it. Balance the need for safe-keeping against the need for the original document to be found once you have passed away.

At the time your will is made, there will be only one original document. It might be a good idea to photocopy the will and write on the copy something that indicates the location of the original. Then years later when you take out your copy to refresh yourself on what's in your will, you will also remind yourself of where it's being stored.