While this presumption will vary in each case based on the character of the testator and such factors as the nature of the relationship to the beneficiaries, the contents of the instrument, and the possibility that the will may have been lost, rather than destroyed, this presumption exists and makes the step of searching for and locating the original will especially important.
(a) by affidavit evidence without appearance, where all persons who have a financial interest in the estate consent to the proof; or
(b) in the manner provided by the court in an order giving directions made under rule 75.06.
Rule 75.06 states that “any person who appears to have a financial interest in an estate may apply for directions…as to the procedure for bringing any matter before the court.” Accordingly, by providing affidavit evidence or going under Rule 75.06 of the Rules of Civil Procedure, it is possible for a beneficiary or executor to succeed in a lost will application and avoid the need for the original copy. The Application for a lost will is expensive and time consuming, but it is a means by which an individual can attempt to recreate a testamentary document for a deceased individual when the original is missing but believed not to have been revoked.
Furthermore, if it is believed that someone has the original testamentary document that is required, and they are not co-operating with requests for its production, there is also a mechanism to compel production of the document. Pursuant to section 9 of the Estates Act, in conjunction with Rule 74.15 of the Rules of Civil Procedure, “… the Superior Court of Justice may, on motion or otherwise in a summary way, order any person to produce and bring before the registrar, or otherwise as the court may direct, any paper or writing being or purporting to be testamentary that is shown to be in the possession or under the control of such person.”
In conclusion, it is very important to have a safe place to keep your original testamentary documents. If for some reason, the document cannot be located after your death, it is possible to apply to the courts to have the issue resolved and the wishes of your original testamentary document upheld. However, due to the additional expense, delay, and uncertain result of a Lost Will Application, it is best to ensure that all original testamentary documents are carefully stored and accessible to the named executor(s) upon death.
Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.
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