The Original Copy of a Will: When to Release It and To Whom?

August 24, 2021 Hull & Hull LLP Estate & Trust, Estate Planning, Wills Tags: , , 0 Comments

The importance of safeguarding the original copy of a Will cannot be overstated. For one, the original copy is required to apply for a Certificate of Appointment of Estate Trustee with a Will. Perhaps more importantly, when an original Will cannot be located upon death, there is a presumption that the Will was destroyed by the testator with the intention to revoke it.  We have previously blogged about this presumption and how to rebut it here.

Given the importance of the original copy of a Will, many drafting solicitors offer to hold it. In these circumstances, the drafting solicitor might wonder who is entitled to see the original Will, and when.

Of course, the original Will should be available to the Testator, should they wish to review, amend and/or revoke the document.

In addition, the original Will should also be made available to the named Estate Trustee(s) upon the Testator’s death. Drafting solicitors should be mindful of the fact that there might be multiple Estate Trustees and/or alternate Estate Trustees. If there are multiple Estate Trustees, the drafting solicitor should consider getting a direction from all of them before releasing the Will. Before releasing the original Will, it is also prudent to obtain a copy of the death certificate of the Testator and to ask the Estate Trustee(s) for documentation to confirm their identity.

Can the original copy of the Will be released if the Testator becomes incapable? If so, to whom? If the Testator had appointed an Attorney for Property prior to becoming incapable, the Attorney is entitled to obtain the original copy of the Will pursuant to section 33.2 of the Substitute Decisions Act 1992, S.O. 1992, c. 30. Importantly, the named Estate Trustee(s) is not entitled to obtain the original copy of the Will before the Testator’s death, unless they are also the Attorney for Property for the Testator.

Are the beneficiaries ever entitled to the original copy of the Will? Put simply, they are not. However, at the time of the Application for a Certificate of Appointment of Estate Trustee with a Will, beneficiaries are entitled to receive a copy of the Will and the Notice of Application. Beneficiaries who are entitled to inherit a portion of the residue of the estate are entitled to receive a copy of the entire Will, while beneficiaries who are going to inherit a specific item or a specific sum of money are only legally entitled to a copy of the provision granting the gift or bequest.

Finally, keep in mind that, once an Application for a Certificate of Appointment of Estate Trustee with a Will is filed with the Court, the Will becomes a public document and any individual can contact the court office to request a copy.

Thank you for reading.

Juanita Valencia

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