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Last updated: October 2022
When a lawyer receives a request to provide a will to someone other than the testator, the lawyer’s duty of confidentiality to the testator should guide how to respond and what information can be disclosed.
Generally, unless the nature of the matter requires such disclosure, a lawyer should not disclose having been retained by a person (Rule 3.3-1 of the Code of Conduct). This duty continues indefinitely, including following a client’s death. Accordingly, as a starting point, upon receiving a request for a will it is important to confirm that the answer to that question is confidential. The lawyer should ask for information to ascertain the identity of the person requesting the will and their relation to the testator and indicate they will look into the matter. Review the closed file and search online for an obituary before disclosing any information to the person. The following should be considered in determining what information is disclosed:
The will should only be released to a personal representative named in the will and should only be released upon confirmation of the testator’s death. Request and retain a copy of proof of the testator’s death (e.g., a funeral director’s certificate or a government-issued death certificate) and photo identification of the personal representative who picks up the will. Have the personal representative sign a receipt when they pick up the will. Be sure to retain a copy of the will, signed receipt and the remainder of your closed file.
If there are joint personal representatives named in the will, ensure that all personal representatives participate in the request to obtain the will. Joint personal representatives must agree or obtain a court order regarding whom the will should be released to. It is not necessary to obtain the consent of alternate personal representatives before releasing the will.
If the person requesting the will is an alternate personal representative, seek details regarding the status of any primary personal representative(s). The alternate personal representative should either provide proof of death or a signed renunciation for each primary personal representative before the will is released to them.
The will should not be released to a beneficiary unless they are also named as a personal representative. However, if they have close connection to the testator, including a spouse, adult interdependent partner or child, it is appropriate to assist in the process by asking for the personal representative’s contact information for the lawyer’s follow up or inviting the personal representative to contact the lawyer to discuss the matter further.
If the person who inquires about the will is not a personal representative but is a beneficiary, the contents of the will should not be discussed.
If the person who enquires about the will is neither a personal representative nor beneficiary, the lawyer should not disclose whether the lawyer has the will, any details about the will or any file materials relating to the will.
If another lawyer inquires about the will the same considerations apply as if their client is contacting the lawyer directly. Before releasing the will to the requesting lawyer, a signed authorization from their client, presumably the personal representative, should be obtained.
If a lawyer indirectly becomes aware that someone is trying to locate the will, the same considerations set out above apply. In the case where a named personal representative is trying to locate the will, the lawyer can contact that individual. In cases where an affected party is trying to locate the will, the lawyer can contact that individual to request contact information for the named personal representative.
In circumstances where the above situations do not apply, it is recommended that the lawyer contact the Practice Advisors for confidential advice. For example, if none of the named personal representatives are alive or capable of acting, an administrator would need to be appointed by the court. In certain circumstances, particularly where there is disagreement among joint personal representatives, a lawyer may want direction from the court regarding how to appropriately deal with the will.