Some lawyers prefer that the client keep the original will, while others prefer to store them in their office. Office retention provides safe storage and ensures that you will be contacted if your client dies. If kept at your office, ensure that you have a secure location, such as a vault or fireproof locking cabinet. If you change offices or leave practice, you must notify every client and the Law Society where the wills are stored.
The Code of Professional Conduct for British Columbia provides ethical guidance relevant to file management, storage and disposal procedures in section 3.5 (preservation of clients’ property). “Property” includes original documents such as wills (BC Code rule 3.5-1). A lawyer must care for a client’s property as a careful and prudent owner would when dealing with like property, and observe all relevant rules and law about the preservation of a client’s property entrusted to the lawyer (rule 3.5-2). A lawyer is responsible for maintaining the safety and confidentiality of the client’s files in the lawyer’s possession and should take all reasonable steps to ensure the privacy and safekeeping of the client’s information.
The Law Society sets out in its publication, “Closed Files – Retention and Disposition” (July 2015) that
“When creating a closed file records policy, a law firm should consider the types of files the lawyers handle. For example, wills files should typically not be destroyed for a minimum of 100 years after the will was executed, unless 10 years have passed since the deceased’s will was probated.” Further, “It is strongly suggested that the lawyer return original wills to clients for safekeeping after execution. Long-term storage of original wills can become a major problem for sole practitioners and small firms, particularly when the lawyers want to retire. Retain copies of everything else in the file: a copy of the original will, successive drafts, notes, copies of previous wills, and correspondence. Will files must be treated differently from other files, since they contain evidence of matters such as testamentary capacity and intention and document the lawyer’s work. Once a will has been probated, it is suggested that the file should be retained for 10 years after final distribution of the estate and any trusts are fully administered.”
Refer to Law Society Rule 3-87(1) for the rule regarding the disposition of files, trust money, and other documents and valuables.