By Sanette Viljoen
Aunt Maggie is 92 years old. She dies in 2019. However, the bank visited her in 2017 and drew up a new will. On her demise the executor ─ the bank ─ lodges a will from 1986 with the Master. They claim that the 2017 will became lost. Aunt Maggie’s daughter, however, has a copy of the 2017 will. What now?
A few legal principles and options apply. Firstly, it is important to know that in our law there is an assumption that the testator has destroyed his will if the original cannot be found. This is the assumption that is normally accepted. This assumption can, however, be disproved by the necessary evidence.
Taking these facts into consideration, Aunt Maggie’s daughter will probably succeed with an application to accept that the copy of the 2017 will reflects the testator’s last will. A copy of the 2017 will will then be accepted by the Master by means of a court application. Unfortunately such an application comes with considerable legal costs. The extent of the estate must be set off against the legal costs of such an application.
An alternative would be rather to share the evidence and facts with all the heirs in terms of the 1986 will and to try and convince them to relinquish their inheritance in order to get the same result that the 2017 will would have had without a court application.
These options, however, are prone to potential impediments. For this reason it is very important to put your original will in safekeeping and to make sure that it is in a place where it will be easy to find upon your demise.