Abstract:
Executing a will is an important step in estate planning. A will gives the
testator the opportunity to bequeath his assets and to indicate how he
wants his estate to be distributed after his death. Not only is the proper
execution of a will important but it should be updated regularly and
carefully to provide for changed circumstances. The will must accordingly
be readily available for the testator to amend or revoke. The availability of
the will after the testator’s death is crucial in order for the administration
process to commence. Although an easy accessible will can lead to
problems surrounding the authenticity of the will, it can contribute to the
prompt administration of the estate as it must be submitted to the master
in terms of the Administration of Estates Act.
In this article numerous problems relating to the existence, availability and
recovery of a will at the death of the testator are discussed. Interrelated
issues such as forgery, lost wills, missing wills, concealment of wills and
revocation by destruction of a will are discussed with reference to case law
and other examples. Questions as to the proper custody of the will, before
and after the death of the testator, resolving disputes amongst next-of-kin,
and the onus of proof, are discussed. Cases that in fact dealt with common
law lost wills, but where section 2(3) condonation applications were
incorrectly brought, are discussed. Possible resolutions for the
miscellaneous problems with wills are explored and recommendations
made to solve potential problems.
