Accounting for Law
Estates & Wills & Trusts

Locating a will can be a tricky business

Knowing when to stop the search for a will following the death of a loved one is a tough call, Toronto litigator Matthew Urback tells AdvocateDaily.com.

Urback, associate with Shibley Righton LLP, says it’s surprisingly common for uncertainty to reign among family and friends about whether the deceased actually left a will behind.

“It’s almost like proving a negative because you’re searching for something that you’re not sure actually exists,” he explains. “That means it’s hard to know when to throw in the towel.”

Each case is unique, but Urback says potential beneficiaries should be guided by their own judgment, based on their knowledge of the deceased.

“If it was someone who kept all their money under the mattress, then you’re going to have a different threshold than if it’s someone who was highly sophisticated in terms of seeking professional and financial planning advice,” he says.   

If a person had a close relationship with a particular lawyer or law firm they would turn to frequently for advice, Urback says that’s the first place family and friends should check for a will.  

However, he acknowledges that not everyone seeks legal advice to draw up a will.

“Other more obvious places include safety deposit boxes or any secure place in the home,” Urback says. “Next of kin will often search home offices and filing cabinets for anything that gives an indication of a will’s existence.”

Family and friends could also check with anyone previously granted powers of attorney by the deceased, or with their other professional advisors, such as an accountant or financial planner, and some testators may have registered a will with the court.    

“It’s more art than science,” admits Urback, who says that may change if a recent initiative takes off province-wide. The County of Carleton Law Association’s WillCheck is a will registry for residents of eastern Ontario and their lawyers to deposit information about drafted wills. The program is designed to make the lives of trustees and testators easier.  

“The idea is for lawyers to register the wills they have, so that the information isn’t lost in office moves or for whatever other reason,” Urback says. “It’s in its infancy right now, and there’s nothing required in Ontario yet, but if it catches on, that would be a quick and easy way to check if there is something out there.”

For testators, Urback says it’s a good idea to let a trusted person know about a will’s existence, as well as its location, particularly if it was drafted without the help of a lawyer.

“You don’t have to divulge what’s in the will, but you can let them know where to find it,” he says.

Failing that, Urback says testators should leave the will in an obvious hiding place, such as an office or with other important personal documents.

“The whole point of a will is for it to be found and give you some say over what happens to your assets,” he says.

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