18 – Determining Invalid Wills

Trust Fundamentals-PGTS Standards February 8, 2022

PGTS Standard

18. To consider a will no longer valid documentation must be in the file approved by legal counsel who is authorized to practice in the applicable jurisdiction. [PGP, PGTS]

Determining the Validity of Old Files

Have you ever come across a file in your fireproof vault that was so old the will inside was written on papyrus? Or the testator’s social security number was 1? Or perhaps the personal representative was Methuselah? Maybe you haven’t had any wills that old, but are old enough that you really don’t know if they are still valid, or what to do with them if they are not. Standard number 18 requires every PGTS accredited organization to have documentation in the file approved by legal counsel for any wills that are considered no longer valid. An excellent strategy for complying with this standard is to get a legal opinion that describes when a will is no longer valid. Then, place a copy of the legal opinion in a file with an explanation as to how the invalid will meets the description in the opinion. It would be best to present the invalid will to your trust management committee for an action declaring the will invalid. A copy of the minutes from the committee meeting should then be placed in the file as well.  

This strategy is helpful for situations when your organization still has contact with the testator. But what about situations where the testator can not be located, and there hasn’t been any contact with them for several years? It is a good idea to have the legal opinion explain how to handle these situations. You most likely will not be able to declare the will invalid, but your attorney can help by suggesting ways to deal with them.

Why Invalidating is Necessary

Now you may be asking yourself, “Why does it even matter if the will is invalid? Can’t we just shred the file if we haven’t heard from the testators in a really long time?” If it is an original will the answer is no, you can’t destroy the file. The reason for this is that you never know when a testator, family member, or personal representative might show up and ask for the document your organization is storing. By keeping an original will, or any original legal document, the organization is assuming the role of custodian for that document until a duly authorized person comes to claim it. The organization can’t simply destroy the document because it thinks the testator no longer needs it. The organization must hold on to the will, sometimes indefinitely, which is why an organization should be very cautious about taking on this responsibility.

So what might be included in such a legal opinion? Click here for an example of the legal opinion created for the General Conference, which organizations can use as an example. You will notice there are essentially three parts to the opinion.

  1. Paragraphs 1 – 3 deal with how a will may be considered no longer valid.
    1. The testator has created a new will or revokes the old one.
    1. The testator’s Attorney-in-Fact, properly verified, revokes the old will.
    1. The testator has died, and the probate court has validated a more recently created will.
  2. Paragraph 4 states what to do when the testator cannot be located, and there has been no communication with the testator for several years.
  3. Paragraph 5 gives a process of dealing with other possibilities of invalidating a will. This process is essentially having legal counsel review the facts and circumstances and determine the best action to take, legally speaking, of course.

Feel free to use this legal opinion as an example of how to craft your own organization’s guidance. But be sure to use your own attorney who will need to prepare the opinion based on legal statutes and precedence for your jurisdiction.

Will Copies

Keep in mind that if you are holding only a copy of a will, you may not have any legal responsibilities as a fiduciary or as a custodian. Not all jurisdictions, but most will not accept a copy of the will. It is improbable that your organization has any legal obligations when storing a copy of a will in these jurisdictions. You will want to check with your own legal counsel on this and understand what responsibilities your organization has when accepting a copy of a will. For example, if you have no legal obligation for holding a copy of a will and there are no other original documents in the file, such as a trust, chances are good that GCAS auditors will not need to review the file for a trust review. Be sure to check with your auditor if there are questions about the file.

Knowing when a will is invalid, or having a process for handling those really old files, will allow your organization to free up some much-needed space in your filing cabinets. It may even help speed up the trust review process because there will be fewer files to review.