How do you prove a lost Will in court?

A Will is of great importance upon one's death as it is the legal document that states the deceased's wishes with respect to what is to be done with his/her estate as well as his/her funeral arrangements. In some rare cases a Will was made but cannot be located because it has been lost or destroyed at some time prior to death due to a calamity, such as a fire. When there is no Will because it has been lost or destroyed, can the contents of that Will be proven in court and admitted to Probate? It is possible and the question becomes: What evidence is considered admissible by the courts?

The person who has a copy of the Will or knowledge of its contents is of great assistance, as this knowledge is admissible as evidence. However, this evidence is not sufficient alone. The person presenting this evidence must overcome the presumed animo revocandi. This means that the information he has with respect to the Will was not changed without notice to him before the deceased's death. There are three important questions that must be asked in the process. First, was due execution of the Will established? Second, were the contents of the Will satisfactorily proved? And third, is there enough evidence to rebut the presumed animo revocandi?

The standard that is required by the courts to prove the contents of a lost or destroyed Will is on the balance of probabilities. This may be more difficult than it seems, as you must prove that the person with knowledge of the contents or a copy of the Will is a trustworthy witness. However, the more witnesses you have gathered who have heard the deceased talk about his/her Will, has physically seen the Will or knew the whereabouts of the Will at one point in time are all helpful. Also, the more you can find out about the deceased person's personality from friends and family who are not involved as beneficiaries will help determine if those witnesses as to the existence of the Will are telling the truth as to the contents of the Will.

Accordingly, if you are successful in gathering enough evidence to satisfy the court that the witnesses are trustworthy due to their knowledge of the Will's contents and/or having a copy of the last Will that was reportedly made, then you should be able to prove in court the lost Will and have it admitted to Probate. Failing that, you proceed on the basis of an intestacy and the distribution is as set out as dictated by the Legislation. 

Reviewed March 2015