Scrutiny of the Will and Damage to a Will

/Scrutiny of the Will and Damage to a Will
Scrutiny of the Will and Damage to a Will 2017-02-19T08:05:07+00:00

Scrutiny of the will

On receiving the original will the solicitor examines it for irregularities or matters which might require explanation or investigation. When probate of the will in common form is sought all such explanations are made by affidavit filed in support of the application.

Defacement of the will

Evidence of burning, tearing, scoring or other such appearances might lead to a presumption of revocation or partial revocation of the will by the testator and will require explanation.

Any act of destruction or partial destruction must be carried out with the intention of revoking the will or part of it.

Evidence of an annexure to the will

Any marking which might infer that another document may have been attached to the will e.g. pinholes, staple holes, creasing by paper clips or fasteners, a piece torn off and traces of sealing wax or wafers must be explained. If another document were attached to the will it must be produced or its absence accounted for as such a document may have been a codicil or later will.

Marking of a will may occur through inadvertence in the handling of it subsequent to the death of the testator. Care is therefore taken to ensure that no such marking of the will occurs since whatever the circumstances, an explanatory affidavit will be required in any probate application.

Interlineations and alteration not properly attested

Unless interlineations and alterations are attested as required by law (generally by the initialling of the alteration or interlineation by the testator and the attesting witness), then such amendments are ineffective unless there is evidence that they were made prior to the execution of the will or were validated by its re-execution or by the execution of a codicil.

Alterations of trivial importance need not be accounted for but unless properly attested they will not be admitted to probate.

Erasures and obliterations of importance

As with interlineations and alterations, it is necessary to prove that erasures and obliterations existed in the will at the time of its execution unless they have been duly executed and attested or validated by the re-execution of the will or by the subsequent execution of some codicil.

If it cannot be shown when the erasures and obliterations were made and the words erased or obliterated are not entirely effaced (ie. by inspection of the paper are readily ascertainable) such words will be included in the will as proved.