Key Points: |
-Self-storage by the client is generally not advisable, and can result in lost wills |
-Firm storage is more reliable but results in costs and liability for the firm. |
-Centralized will storage can offer the best service to the client, while reducing costs and liability for the firm. |
If the original will is lost or destroyed, it is presumed revoked.[1] Wills need to be kept safe and secure for a long period of time, and must be easy for the executor to find. Addressing will storage during the estate planning process is often overlooked or left as an afterthought. Fortunately the modern Wills and Estates lawyer has a number of options for how they chose to serve their clients.
Self-Storage
Some clients may be well equipped to store their will at home. They may feel well organized and have fireproof document storage in their home. Make sure they understand that safety deposit boxes are not appropriate for will storage, as most financial institutions now require the probated will before granting access to the box.
Self storage can be risky. Many people experience significant cognitive changes between when they draft their will and when they die. They may move, or be downsized by family. Wills stored at home may be vulnerable to tampering by family members.
Advantages of Firm Storage:
Although storing your client’s will is not a mandatory duty, offering will storage can enhance your practice’s reputation and provides a number of advantages over self-storage:
· Client retention and future business - When you store a client's will, it increases the likelihood that they may retain you in the future, whether it be for updated wills, estate administration, or other areas of your practice. Their will is in your care, and you've proven yourself trustworthy.
· Peace of mind for your clients - Clients often feel more secure knowing their will is in the hands of a trusted professional.
· Peace of mind for you - By offering will storage, you reduce the risk of complications arising from damaged, misplaced or tampered wills. You can ensure your client’s document stays safe.
Obligations and requirements:
Specific Obligations:
The Law Society of Ontario (LSO) has two specific lawyer obligations for will storage:
General Obligations:
There are also general obligations that should be applied to will storage
1. Record keeping When storing wills for clients, it is important to maintain accurate records of your will bank. This includes documenting all stored wills, retrievals, updates, and transfers between firms. Best practices suggest that you maintain an inventory of each will, including the date it was made, the client's name, contact information, and the specific storage location. Proper documentation ensures that you can quickly locate any will when needed and helps prevent the risk of lost or misplaced documents during succession.
2. Response to search queries
If you receive a request from another lawyer searching for an individual’s will, your are expected to search your records and respond if the will is in your possession.
3. Succession Planning As of January of 2025, law firm contingency/succession planning is a professional duty[4]. You are expected to have a plan that ensures the ongoing safety and accessibility of your will bank.
The retiring lawyer is required to continue to store the will indefinitely until the client provides instructions. If the client cannot be reached, the retiring lawyer may transfer the will to another lawyer for continued safekeeping but must advise the Law Society’s By-Law Administration Services department as to whether the retiring lawyer will continue to hold the wills or provide the name and contact information of the new lawyer.[5]
Storage Options for Lawyers and Firms
In-house storage. Storing wills within your law firm is a common practice. If you choose this method, ensure that you comply with the LSO’s requirements for will storage, specifically the requirement for secure, fireproof storage. For firms with small will banks, this may include several fireproof filing cabinets. With larger will banks, it may be more economical to construct a fireproof vault.
Document Storage Services. As your practice grows, space may become an issue. If storage space is limited, offsite facilities could provide a practical alternative. When choosing a storage facility, ensure that it meets LSO requirements and offers protection against environmental and security risks. It is good practice to select a facility that is staffed or regularly monitored, that provides fireproof storage, and doesn’t use water based fire suppression systems.
Paying for off-site storage saves on valuable office space, but can incur significant ongoing costs.
Centralized Will Storage. Using centralized will storage allows firms to offer their clients all the advantages of firm-based storage without incurring the costs and liabilities. Having many firms share the same storage facilities generates economies-of-scale that allow:
· Higher standards – advanced security measures, temperature and humidity control, modern fireproof vaults with dry-powder based fire suppression systems, pest prevention and document management systems are all standard.
· Lower costs – Large volume facilities keep long-term storage costs low. Costs are generally paid by the client, not by the firm.
· Searchability – Centralized databases make it easy to find stored wills, ensuring stored wills aren’t orphaned and can be found by the executor even in the absence of information.
· Built-in Succession Plan – In the event of an unforeseen event, centralized storage can facilitate a firm’s succession plan. For a retiring lawyer, a will bank already secured at a centralized storage facility has significantly more resale value.
Centralized will storage offers both the client and the firm significant advantages over self-storage or storage by the firm.
Conclusion
Storing wills for clients is a service that offers significant value to both your practice and your clients. By understanding your obligations and the options available for secure storage, you can ensure that your clients' wishes are upheld and that their estate plan is maintained.
Centralized will storage through companies such as Custodius® (Custodius.ca) offer the client and the law firm all the advantages of firm-storage without the costs or liabilities.
*This article is not intended to be legal advice and should not be relied on as such. All lawyers with questions or concerns regarding his/her duty to store wills or client files are encouraged to seek legal advice or should contact their insurer.
[1] Succession Law Reform Act, RSO 1990, c. S.26 at section 15(d); Lefebvre v. Major 1930 CanLII 4 (SCC), [1930] S.C.R. 252 at 257.
[2] Rule 3.5-2 of the Rules of Professional Conduct and see LSO’s “Guide to Retention and Destruction of Closed Client Files for Lawyers” at Appendix 6 - Area of Practice Specific Guidance on File Retention and Destruction.
[3] Ibid. Note that there are separate rules for storage of the entire client file versus an original will or other original client documents.
[4] BY-LAWS MADE UNDER SUBSECTIONS 62 (0.1) AND (1) OF THE LAW SOCIETY ACT BY-LAW 7.1 [OPERATIONAL OBLIGATIONS AND RESPONSIBILITIES]