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Trust | Will | Wills Act | Wills and estates

Is a copy of a will valid?

“Both my parents recently passed away in a car accident. My father shortly before his death mentioned to me that they recently had a new joint will drawn up. I’ve searched everywhere for the will and can only locate a copy of the signed will. Even their attorney does not have the original will. Can this copy be accepted as the valid will of my parents?”

In terms of our law of succession, the Master of the High Court can only register and accept wills that comply with all the formalities in terms of the Wills Act. In a case where an original will is lost or destroyed and only a copy of the original will is available, such a copy can be accepted by the Master, but an application will have to be made to court for an order declaring the copy of the original will valid for purposes of administering a deceased estate.

An executor nominated in terms of the will or any beneficiary entitled to inherit in accordance with the will can approach the court for an order directing the Master of the High Court to accept the will. Such an applicant will have to prove the following:

  1. That the will was executed in a due and valid manner.
  2. The circumstances in which the original will was lost or destroyed or that a diligent and sufficient search for the original will was made with no success.
  3. That the deceased had no intention of revoking the said will.
  4. That the copy of the original will contains the contents of the original executed will.

Only if the court is satisfied that the copy of the will is valid and represents the intentions of the testator, may the court order the Master to accept the copy of the will as valid and to be used for purposes of administering the estate.

Accordingly, our advice would be to approach your attorney and/or the indicated executor in the will to discuss the way forward and if an application should be brought to court for the copy to be accepted as a valid will by the Master.

October 12, 2021
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