practice areas

Where do you keep the original Will? In the old days the attorneys would keep the original signed Will giving the client a signed copy noting on the signed copy the original was located at the attorney’s office in the office Will vault. This procedure has changed markedly over time because mainly people wanted to have their own original Will and also attorneys often retire and things like Wills disappear. The problem arises when there is a claim that there was an original Will but now it can’t be found after the testator dies. Often a copy will be found unsigned but that’s not good enough. If the original can’t be found there is a legal presumption that it was changed by the testator. 

The problem with the client keeping the original Will is often when the client becomes ill or incapacitated, he or she will misplace the Will or some other person who may or may not have an interest in the Will discards it or some person who will benefit more by the decedent not having a Will actually get a hold of it and destroys it. In these cases it would have been better for the attorney to have kept the original Will, but then you have the problem of attorneys retiring and people simply want their Wills with them.

We recently had a case where the client’s boyfriend had indicated that he had done a Will leaving his entire estate to her. He had given her an unsigned copy of the Will which she brought into the office. The testator’s children decided to fight the attempted probate of the copy of the Will indicating that they were benefitted by the presumption that since there was no signed copy, it was implicit that the testator had revoked the Will. Compounding the problem was that we could not find the original Will. The testator had no bank vault, had no attorney that we knew of or any other person who might have had the Will and of all things, the testator was a hoarder. He had a 2-bath home located in the Fremont area in which he lived alone. Every room in the home was packed with odds and ends, furniture, clothing, trash, you have it. I mean every room was packed. You couldn’t even walk in a room. It was simply a trail in the home from the front door to the kitchen and trail to the bathroom, trail to the decedent’s bedroom. The trail was only one foot wide. Everything else was covered completely with junk. We had experts search the home two times and they came up with no original Will. We were forced to enter into a settlement of the estate bringing in the children, which actually turned out to be for our client’s benefit. After the estate had been settled, our client in helping to clean out the home for sale actually found the Will on a nightstand right next to the decedent’s bed. How this was missed by the searchers, we will never know.

Some of you readers might be able to pass on some hints on how to solve this problem of the original Will. The attorney can explain all the issues to the client when they take the Will, they can explain the issues to the client’s family, they can put reminders in newsletters to the clients, but inevitably there could be a problem