The Vanishing Will: A Growing Crisis in Estate Planning
A recent High Court case in Ireland has brought to light a worrying trend: the increasing frequency of “lost will” disputes. The case of Mary Eastwood, where a will detailing the distribution of seven properties disappeared after her death, isn’t an isolated incident. Judge Oisín Quinn ruled that the will hadn’t been revoked, rejecting arguments for an equal division of the estate among the five siblings. However, the case underscores a critical issue – the fragility of traditional will execution and storage.
The Eastwood Case: A Family Divided
Mary Eastwood died in December 2018, aged 85. Her 2016 will, prepared by solicitor Fintan Lawlor, bequeathed her seven properties in a specific manner. Whereas a copy existed, the original could not be found either at her home or in the offices of Lawlor Partners. Three of Eastwood’s children argued the will should be considered revoked, leading to an equal distribution. Judge Quinn ultimately found it probable the original will was never posted, upholding its validity. The family, it was noted, had “long-standing family tensions.”
Why Are Wills Disappearing?
Historically, lost wills were rare. Solicitors maintained meticulous physical records. However, several factors are converging to increase these disputes. The increasing volume of estates being settled, driven by aging populations, is putting a strain on legal systems. More significantly, the shift from physical documents to digital record-keeping introduces new vulnerabilities.
In the Eastwood case, the solicitor conceded that sending an original will and enduring power of attorney by ordinary post would be “totally irregular and unacceptable.” He too admitted there was no record of the will being posted and no entry in the office register confirming it had left the office. This highlights a critical flaw in traditional practices.
The Rise of Presumption of Revocation
When a will cannot be found after a testator’s death, the legal principle of “presumption of revocation” often comes into play. This means the courts may assume the testator intentionally destroyed the will, effectively revoking it. This can lead to estates being distributed according to intestacy laws (the default rules when someone dies without a valid will), often resulting in an equal division among heirs – a result fiercely contested in the Eastwood case.
Digital Wills and the Future of Estate Planning
The increasing reliance on digital documents presents both opportunities and challenges. While digital storage can offer greater security and accessibility, it also introduces new risks, such as data breaches, technological obsolescence, and the potential for manipulation. The case of Mary Eastwood highlights the importance of secure, verifiable record-keeping.
The Law Society of Ireland has not yet issued specific guidance on digital wills, but the trend towards electronic execution is undeniable. Secure digital platforms, blockchain technology, and robust authentication methods will likely grow increasingly important in ensuring the validity and enforceability of wills.
Pro Tip:
Don’t rely solely on your solicitor to store your original will. Maintain a copy yourself in a safe and accessible location, and inform your executor(s) of its whereabouts.
What Can Be Done to Protect Your Estate?
- Secure Storage: Store your original will in a fireproof, waterproof safe or a secure deposit box.
- Digital Backup: Create a secure digital backup of your will and other important estate planning documents.
- Regular Review: Review your will periodically to ensure it reflects your current wishes and circumstances.
- Inform Your Executor: Clearly communicate the location of your will and other estate planning documents to your executor(s).
- Consider a Professional Trustee: For complex estates, consider appointing a professional trustee to manage the administration process.
FAQ
Q: What happens if my original will is lost?
A: The court may apply the presumption of revocation, potentially leading to an equal distribution of your estate.
Q: Is a copy of my will legally valid?
A: A copy can be used as evidence, but the original is generally required to prove the will’s validity.
Q: Can I create a digital will?
A: Digital wills are becoming increasingly accepted, but it’s crucial to ensure they meet all legal requirements for execution and storage.
Q: What is intestacy?
A: Intestacy refers to the rules that apply when someone dies without a valid will. The estate is distributed according to a predetermined formula.
Did you recognize?
The number of contested will cases has been steadily increasing in recent years, driven by factors such as rising property values and complex family dynamics.
The case of Mary Eastwood serves as a stark reminder of the importance of careful estate planning and secure will storage. As we move towards a more digital future, it’s crucial to adapt our practices to mitigate the risks and ensure our wishes are honored.
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