Tracking estate beneficiaries: lawyer turns detective


People can make life easier for loved ones dealing with their estate by ensuring a copy of the will is kept where it can be easily found by a trusted family member or lawyer, advises Toronto litigator Jonathan Miller.

He tells a recent case he worked on involved a fair amount of detective work to track down 25 potential beneficiaries before he could proceed with an application to prove a copy of the will. The process for proving a lost will is found within Rules 75 and 76 of Rules of Civil Procedure, and Miller says he was able to find the right people and settle the matter within a year.

“It could have been significantly longer because ultimately no one challenged the will. If any of the potential beneficiaries had, it would have taken much longer to resolve," Miller says. “That would involve responding materials and potential cross-examinations before the actual hearing of the application. It could easily have taken another six, eight, 10 months if there was any kind of challenge to it.”

At the heart of the case was proving a lost will and the importance of maintaining a good record or making sure that a lawyer who keeps an original knows where to find it, says Miller, an associate with Shibley Righton LLP.

It may be decades before anyone needs to access the document, and by then people have moved, lawyers may have moved and things could get lost in the shuffle, he explains.

"If the testator keeps the original, ideally it would be kept in a safety deposit box or similar location and someone should know it’s there so when the person dies, it’s easily found,” Miller says.

"The testator should keep the will," Miller says. "Ideally it would be kept in a safety deposit box and someone should know it’s there so when the person dies, it’s easily found.”

He says some people don't like to keep a will at home, worried that someone may see it and become upset.

"Different circumstances will really dictate who hangs onto the original and whether or not someone is going to have a copy and so in my particular case, having a copy is really what made things easier for us," Miller says.

"I suggest a safety deposit box or that a trusted advisor, friend or family member holds onto a copy," he says.

However, Miller points out, there's always a chance of litigation based on what's promised in life versus what's written in the will.

"The reality is quite often people tell their family members one thing about how they’re going to divide the estate and then tell their lawyer something different," he says. "It can create a lot of animosity if someone has access to a copy of the will and others don’t, or if the will is inconsistent to what’s being told to family members.”

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