Can Your Loved Ones Access Your Estate Planning Documents?
A recent Globe & Mail article highlighted an oft-overlooked estate planning risk: the lost will. In the case of Finsant Estate (2024),1 a will prepared in 2001 named the deceased’s grand-niece as the sole beneficiary. While the will could not be located, the assumed beneficiary asked the court to enforce it, and the estate’s administrator claimed the deceased had died without a will.
If a will is known to exist but is lost, “clear and convincing evidence” is required to validate it. Otherwise, it may be presumed to have been deliberately destroyed by the deceased. In this case, the court declared the estate “intestate,” meaning assets were distributed according to provincial law.
This underscores the importance of safely storing estate planning documents—and ensuring trusted individuals know where to find them. A will only serves its purpose if it can be located after death.
How Documents Often Get Lost
Years often pass between drafting a will and when it is needed. Home moves or relocation to another province or country can contribute to misplacement. Lawyers may retire or change practices, and original documents can be misplaced, discarded or accidentally destroyed.
In most provinces, the original will is required to administer an estate. Copies, even if notarized, usually cannot replace the original. Beyond the time and effort spent searching for lost documents, the consequences can be severe: the estate may be declared intestate, as was the outcome for the Finsant case, meaning assets are distributed according to provincial law rather than the deceased’s intentions.
Pitfalls With Common Storage Locations
Here are places where estate planning documentation is commonly held, each with its own considerations: Lawyer’s Office — While professional file retention generally ensures safekeeping, keep in mind that changes in practice or a lawyer’s retirement can complicate access.
Safety Deposit Box — While secure and protected against loss or damage, consider that access often requires probate, which in turn typically requires the original will—creating a potential catch-22.
Home Safe — While this may provide easy access for an executor, it may be vulnerable to fire, flood, theft or misplacement during moves.
Why the Power of Attorney Deserves Special Attention
The power of attorney (POA) takes effect during your lifetime, so timely access is critical, especially in emergencies when decisions must be made if you become incapacitated. Generally, there are two types: one for property and one for personal care (the names and terms vary by province/territory, such as mandate, personal directive or living will for POA for personal care). Delays in accessing these documents can create confusion, legal hurdles and unnecessary expenses for loved ones.
Because POAs grant authority over finances, healthcare or other personal matters, ensuring they are immediately accessible to your appointed attorney(s) is essential. Consider whether your attorney could quickly locate them during a sudden illness, hospitalization or while you are abroad. If access is limited to a home safe or ala wyer’s office, identify contingencies to avoid delays.
Regularly Review & Communicate the Location of Documents
Regularly reviewing estate planning documents is important. Changes in your health, financial situation, family circumstances or even provincial laws may require updates to reflect your current intentions.
Ultimately, proper management of estate planning documents is essential. Both the POA and will work together to ensure your wishes are respected, your estate is administered efficiently and your loved ones are protected from unnecessary stress or conflict. Taking proactive steps today to organize, store and review your documents can prevent complications when they are needed most.
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