Winnipeg Free Press - PRINT EDITION

The greatest danger to your will's safety just might be you

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William Brunt kept his will in a safe he had in his home. During his last decade of life, he started to suffer from mental illness. He had periods when his conduct was strange and unpredictable.

One night, at 2 a.m., his wife watched him go into the safe, pull out his will, and tear it into pieces. He threw the pieces on the table, muttering to himself throughout. She was not quick enough to stop him, but did manage to collect the torn-up pieces and put them in an envelope.

Had it not been torn into tiny pieces, his will would have divided his estate between his wife and his son.

He started thinking clearly again a few days later. His wife brought him the envelope containing his will, and told him what he had done. He had no memory of tearing up the will, and wanted to have a fresh copy made up for his signature. Unfortunately, he died before that could happen.

His wife, now his widow, reassembled the will like a jigsaw puzzle. She took it to court, asking a judge for permission to put it to probate.

Courts adopt a common-sense approach when a will has been torn up. If you tear up your will with the intention of revoking it, then the will is revoked. If you tear up your will by mistake, or like Brunt, when you are mentally ill and unable to form the intent to revoke it, then the court will accept the jigsaw puzzle for probate. Brunt's widow succeeded with her jigsaw puzzle. The torn-up will went to probate.

Where should you store your will?

Some people store their will at home. If that is your plan, buy a fireproof box or safe. That achieves two things for you. First, a box will resist a fire -- at least a little one. Second, if you die and your family goes looking for the will, it provides a natural spot for them to look.

People have also been known to store their wills in strange places. The underwear drawer, for example. The freezer is another popular spot. Why the freezer? They have been told it is fire-resistant. That may be true, but people rarely die in house fires, and your family is unlikely to check beneath the pork chops when looking for your will.

Fire is not the biggest threat to your will -- you are. If you lose your marbles as you age, you might start moving the will to different spots around the house, like a shell game for the executor. You might write on it. You might lose it in the shuffle when you move to an apartment or personal care home. Like Brunt, you might tear your will into pieces while you are confused. For every will lost to fire, hundreds are lost at the hands of confused or senile owners.

Storage in a safety deposit box at the bank is a popular option. So is storage in the lawyer's office. These locations are safe from fire, and from you.

Regardless of where you store, the most important thing to bear in mind is this: Tell your executor where the will is to be found. Better still, write a memo to that effect and give it to your executor and all of your family members. Otherwise, they will be rummaging through the freezer.

Brunt and his story are real. The details in this story are taken from the published decision of the court that decided the case. His name has not been changed -- he died 138 years ago. The world changes, but some things stay the same. Wills are still torn, shredded and battered with fierce regularity.

John E. S. Poyser is a lawyer with the Wealth and Estate Law Group at the Winnipeg firm Inkster, Christie, Hughes LLP. Contact him at (204) 947-6801 or jpoyser@inksterchristie.ca.

Republished from the Winnipeg Free Press print edition July 21, 2010 B6

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