Probate Settlement

What Happens In The Process

A Will is meant to be executed by your chosen executor on your demise. Your chosen executor then needs to engage a lawyer to apply for the court application called the Grant of Probate and one of the requirements by the court is that the original Will has to be submitted to the court for inspection.

Imagine then for a moment when a person passes away but the original Will could not be found after his/her death. The family had tried to locate the original Will at all places possible but still could not find it. So, what happened next? Can the photocopy of the Will be submitted to the court? Will the court recognize the photocopy of the Will?

In order to make its decision, the court needed to look at the presumption of destruction animo revocandi (the intention to revoke) which stated that a Will, which could not be found after the testator’s death, will be presumed to have been destroyed by the testator and this presumption will have effect unless there are sufficient evidence to rebut it. It is a presumption on good sense as it is highly reasonable to suppose that a very important document such as a person’s Will would be carefully preserved in a safe place and would not be either lost or stolen and if on the death of the testator, it could not be found in his usual repositories or where he/she resides, it is a high degree probable that the testator himself has purposely destroyed it. But this presumption, like all others of facts, may be rebutted by other evidence which raise a higher degree of probability to the contrary. And it is for the plaintiff in this case to rebut this presumption.

So a very important point is that after you have executed your Will, you cannot keep it a secret. You have to inform your family members of the existence of your Will or at the very least, inform your executor and trustee of your Will so that they will know about the existence of your Will and assist in managing your estate after your demise.

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