Introduction

As seasoned legal practitioners in the field of Estate Planning, we are accustomed to fielding inquiries regarding Wills and the probate process on a daily basis. Among the most frequent queries we encounter are: “What are the ramifications if the original Will cannot be located? Is the submission of a copy considered acceptable?” Such inquiries resonate widely because many individuals inadvertently overlook the importance of maintaining their Will once it has been executed.

In this month’s instalment of our Family Legacy Planning newsletter, we hope to shed some light on the implications surrounding a lost Will. Firstly, we will touch on the guiding principles employed by the Courts when addressing such circumstances. Subsequently, we will delve into two more recent cases wherein these principles were invoked and applied by the respective Courts. With a better understanding of how the Courts treat such situations, we will then be able to know the necessary precautions and steps to be taken that would be in the best interest of the testator and the estate.

What Happens When the Executed Will Cannot Be Found?

It is trite law that where a will cannot be found, it is presumed to have been destroyed by the testator animo revocandi. This well-known principle is found in the seminal Ann Maria Welch v Nathaniel Philips (1836) 1 Moo PCC 299. Parke B at 301 states:

“That if a Will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary.

Pertaining to the rebuttal of such a presumption, in page 242 of Williams, Mortimer and Sunnucks of Executors, Administrators and Probate (being the 21st Edition of Williams on Executors and the 9th Edition of Mortimer on Probate), it is stated that

“…It may be shown that the testator had no opportunity or was incapable of destroying the will, or may establish a combination of circumstances leading to the conclusion that the testator did not himself destroy the will. It may be shown that the will was in existence after the testator’s death that he destroyed it while of unsound mind or in error or under duress; or that it was destroyed in his lifetime by some person without his approbation or consent.

… The acts, declarations and conduct of the deceased may show the improbability of his having intentionally destroyed the will (animo revocandi). Declarations of unchanged affection and intention may rebut the presumption; and as Sir H Jenner Fust said in Saunders v Saunders (1848) 6 N.C. 522, “The strongest proof of adherence to the will, and of the improbability of its destruction arises from the contents of the will itself.”

Evidence of declarations by the testator showing an intention to adhere to the will is admissible to rebut the presumption, as is contrary evidence to strengthen it.

The Cases of [2002] 1 SLR(R) 456 and [2022] SGFC 62

Now that we understand the applicable principles regarding
missing Wills, the following 2 cases show how such principles were applied by the Courts and how such application resulted in 2 different outcomes.

The Case of [2002]1 SLR(R) 456: Where the Admission of a Duplicate Will to Probate Had Been Successful

The case involved a dispute between the son of the deceased (from the deceased’s first marriage) and the deceased’s second wife. The deceased had a will drafted in 1969 and it was agreed between the parties that the Will could not be found after the deceased had passed. As the Will could not be found, the deceased’s second wife sought to rely on the presumption of destruction animo revocandi and claimed that the Will must be presumed to have been revoked/destroyed, resulting in the deceased having died intestate and that the Singapore Intestate Act would ultimately apply. The deceased’s son, however, sought to rely on duplicates of the deceased’s will and the surrounding circumstances to rebut that presumption and that the original will had been simply misplaced, with the deceased having no such intent of revoking/destroying it.

The Court in this case, allowed the admission of the duplicates of the Will based on the following reasons:

1) There had been a significant encounter where just a few months before the death of the deceased, the deceased had taken out a copy of the Will to show his brother and had asked for his brother’s opinion about the Will and seeking his approval. The court was of the opinion that the event showed a full intent by the deceased to adhere to the will and that there nothing that could reasonably be supposed to have occurred within the 8 months which rebutted the presumption of the destruction of the original will. The court also deceased’s brother was a credible witness, hence chose to give weight to his testimony on the account of events.

2) The Court felt that the deceased seemed lucid and clear-minded, going for physiotherapy sessions at the hospitals and even handling his affairs such as instructing his brother to collect his personal mail and belongings from his office and distributing his photo albums to his son. He had even given his second wife instructions pertaining to his funeral. On the facts of the case, the Court found that if the deceased was a meticulous person and if he had wanted to leave more of the estate to his second wife and daughter, then he would have made the necessary plans to draft a new will instead of simply destroying the will and leaving it to intestacy laws without first consulting a lawyer (like how he did so when he drafted his original will).

3) As there was no other evidence between the significant encounter and the date of the death of the deceased to show that the deceased had changed his mind about adhering to the will, the Court eventually admitted the copy of the Will for the purposes of the application for the grant of probate.

The Case of [2022] SGF 62: Where the Admission of Photos of the Will Had Not Be Successful

This case involved the dispute between the second wife of the deceased and the daughters of the deceased from his first marriage.

The second wife alleged that the deceased had executed a will in 1990 claiming that he wanted to give his real properties to his four children and to have the Deceased’s sister assist his second wife with the looking after of his family. In March 2017, it was alleged that the deceased had asked the second wife to check on the Will which he kept in his bedroom safe in his flat and in April 2017 she had allegedly found the Will in the safe and took photographs of all six pages of the Will (except its cover page). It should also be noted that the will only contained the signatures of the witness, without their printed names. It was alleged that she then placed the will back in the safe and locked it there. After the demise of the deceased, the second wife had sought to find the will, only to realise the alleged will had been missing after the deceased’s daughters took over the flat.

The Court in this case refused to admit the pictures of the Will for probate purposes based on the following reasons:

1) There were too many doubts surrounding the authenticity of the images of will and the lack of further evidence provided by the second wife on how the information pertaining to the images was derived, the Court found that the second wife had failed to prove on a reasonable balance of probability that the said images of the Will had been taken at the Flat on the alleged date.

2) The second wife had not given any clear evidence to rebut the presumption of revocation by destruction apart from that the deceased had been in the hospital until his death and would not have the opportunity to return home to destroy the Will. The court noted that even though this may have been true, there was nothing stopping the deceased from having his employee return to the home to collect and/or destroy the will.

3) The Court also took into account the evidence given by one of the deceased’s daughters that the deceased wanted her to assist with finding him a lawyer for the purposes of doing a Will, casting doubt on whether the deceased had still wanted to uphold his older will if he was looking for a lawyer to draft a new will for him.

4) The Court also had doubts about the second wife’s assertion of proximity with the deceased, as there had been little evidence showing that they were particularly close, nor were there any evidence showing that she had been in constant communications or contact with the deceased, hence, substantially reducing the credibility of her claim.

Our Concluding Thoughts

While indeed, there are principles that guide the Court in dealing with lost wills, it is evidently clear that whether a copy of a Will can be admitted for the purposes of the application for the grant of probate would rest entirely on the circumstances, evidence and the credibility of any witnesses. Given that every scenario will involve its own unique set of circumstances, there is minimal certainty as to whether a duplicate can be used if the original will goes missing.

As the adage goes “prevention is better than cure” – Why even permit the occurrence of a situation that could result in the risk of a lost will? A testator should treat his/her will as an extremely important
document. Always ensure that the executor(s) know(s) where to find the will and that the original copy of the Will is easily accessible to them. Of course, a testator could also have his/her distribution intent and the contents of his/her will made known to as many witnesses as possible and to even go to the extent of making multiple copies of the Will and have it given to multiple trusted individuals. This will certainly help in creating a situation where the evidence could overturn the presumption of destruction animo revocandi if the original will goes missing. However, this would also mean that if the testator wishes to revoke and amend his/her will, he/she would have to take the similar steps to inform everyone of such change in intent, failing which, would likely result in the new will being challenged and throwing the estate into uncertainty once again.

How Can SMTP Help You

Having an experienced hand guiding you through the intricacies of the law is always helpful regarding matters of legacy planning. Being specialists in the area of Estate Planning and tapping on our combined decades of experience and very own Wealth Legacy Screening process, our lawyers will be able to assist you in a very systematic and detailed manner on your Family Legacy Planning journey, ensuring certainty and clarity in the management and distribution of your estate.

We also believe in close engagement with our clients, paying close attention to their individual facts and circumstances, and tailoring our advice and courses of action to cater to their specific needs and requirements. SMTP’s core philosophy is to provide bespoke legal advice based on our private clients’ specific needs and requirements, as cases always differ on their fine details. Our team of dedicated staff are ever eager and prepared to assist interested parties. Should you or your clients require any assistance in trust or real estate matters, please feel free to contact our Business Development Team to schedule a consultation. We look forward to working with you.