Lost a Will
Key Takeaways:
Losing a will can be daunting but doesn't render estate plans obsolete.
Steps to mitigate the impact involve thorough searches, legal guidance, and potential re-creation.
It does happen, no matter how careful we may be, that on the passing of our beloved family member, we simply cannot locate their last will and testament. We search high and low, but an actual physical copy cannot be found. Panic sets in. Everyone believes that the deceased executed a will during their lifetime.
So now what?
In this kind of situation, a lot will rest on whether the missing will was known to have been in the deceased’s possession. If so, then the fact that the will cannot be found gives rise to a rebuttable presumption that the will was destroyed by the deceased with the intention to revoke it (a common law presumption).
In the case of S and Others v V N.O and Others (28329/2015) [2016] ZAGPJHC 221 mention was made at paragraph 17 to Ex parte Warren 1955 (4) SA 326 (W) –
“The respondent relies on the presumption in law that where a deceased is known to have executed and possessed a will, which was on his decease cannot be found, a rebuttable presumption arises that the testator destroyed the will and that he did so with the intention of revoking the dispositions he has made therein. In order to succeed, anyone claiming under such a will would have to show on a balance of probability that the deceased did not destroy the will or, if he did destroy it, he did not do so with the intention of rendering it inoperative”.
But this common law principle may not always be applicable, especially if it can be proved, on a balance of probabilities, that the deceased was for example fastidious with his or her documents, most especially their will and would have retained at least a copy of it, or would have given a copy either to either a law firm they used, financial adviser, bank, or trust company.
In this instance i.e. the last will was known to have been in the custody of a family member (aka you), the deceased’s attorney, trusted friend, financial adviser, bank or trust company, then no such presumption of revocation arises. In such a case, the lost will is in “principle operative”, even though it is not physically available. This applies equally where the presumption of revocation operates, but is rebutted by the available evidence (as seen in the S and Others v V N.O and Others matter).
Bottom line
Where the will of a testator cannot be found after his or her death, but is believed that he/she passed testate (i.e. leaving a valid will), then all is not lost if it is possible to establish the contents of the missing will by admissible evidence (i.e. relevant, pertinent and applicable to the facts of a case).
It is open to the beneficiaries to apply to the High Court for an order directing the Master to accept a photocopy, carbon copy of the will, or some other reconstruction thereof, as the deceased’s will (provided that the original will was properly executed – evidence will most likely need to be led in this regard).
Why should you trust Benaters with the intricacies of a lost will?
Applying to the High Court in order to establish the “existence” of a will that cannot be found is a delicate and extremely complicated process.
Evidence will need to be led pertaining to the acceptance by the Court and therefore the Master of a copy or other reconstruction of a will as being one and the same as the original. Lest the deceased’s estate be bequeathed according to the Intestate Succession Act 81 of 1987 – and this may not be the best situation for all concerned. But it can take time and patience. And most of all – help. Luckily, the courts usually protect the final wishes of the testator. Which may act in your favour. But not always.
It is therefore critical that you seek the assistance of professionals who have had vast experience in these types of situations (such as the attorneys at Benaters).
We have assisted many individuals and families with this rather complicated process and have been able to successfully support and guide them through the entire process, leading ultimately to the administering of the deceased estate.
We are here to help you. In any way we can!
So please, get in touch and let us assist you with your deceased family member’s lost will – as always, with professionalism and the utmost due care.