Introduction
You have made your Will during your lifetime and the Will is meant to be executed by your chosen executor on your demise. Your chosen executor then needs to engage a lawyer to apply for the court application called the Grant of Probate and one of the requirements by the court is that the original Will has to be submitted to the court for inspection.

Imagine then for a moment when a person passes away but the original Will could not be found after his/her death. The family had tried to locate the original Will at all places possible e.g. place of residence, home/office safe-deposit box, files containing other important documents and etc. but still could not find it. So, what happened next? Can the photocopy of the Will be submitted to the court? Will the court recognize the photocopy of the Will?

In this month’s case study, we will look at a High Court case on this issue.

Facts Of [2002] SGHC 50
a. The testator (the person who made the Will) married his 1st wife in 1954. There is a son from this 1st marriage and he is the Plaintiff (the person suing) in this case. Sometime thereafter, the testator divorced his 1st wife.

b. The testator then married his 2nd wife, the defendant (the person being sued) in 1969. There was no child to this marriage but they adopted a baby girl. The testator and the defendant raised both the plaintiff and the adopted daughter.

c. The testator then executed a Will by which he left 30% of his estate to the defendant, 60% to the plaintiff and 10% to his adopted daughter. The defendant was appointed the sole executrix and trustee of the Will.

d. After the execution of the Will, the original Will was kept by the testator.

e. The testator then passed away in 1998 and despite searches, the original Will could not be found.

f. The plaintiff sought to admit the photocopy of the Will while the defendant relied on the presumption of destruction animo revocandi which stated that a Will, which could not be found, was presumed destroyed by the testator with the intention of revoking it. The defendant counterclaimed for application for grant of letters of administration based on intestacy as she would then be entitled to a larger share in the testator’s estate. Under intestacy laws, the defendant would be getting 50% (instead of 30% which was indicated in the Will) and the children the remaining 50%.

The Will must also provide for a residuary clause as a catch-all clause to account for the gifts not specified in the Will and/or for future and unexpected assets e.g. inheritance, striking a lottery and etc., failing which without the residuary clause these gifts would not be accounted for under the Will and unfortunately would fall under the default position of the law under the laws of intestacy which sometimes may not be what the testator wants.

Decision Of The Court
The main issue before the court was to determine whether to admit or reject the photocopy of the Will for probate purpose and in doing so, the court had to look at the presumption of destruction animo revocandi.

Plaintiff’s Submission
The plaintiff’s testimony was that the testator was a traditional Chinese man, very conservative in his thinking. The testator was also a careful and meticulous man in his private and business affairs.

When asked to describe his relationship with his step mother, the defendant, the plaintiff said that he did not dislike her. He acknowledged that she had raised and looked after him and as such, accorded her due respect. The plaintiff also respected his father, the testator and they had enjoyed a close relationship in which both had been able to freely confide in each other.

Over the years, the plaintiff had received gifts and financial assistance from the testator. The testator helped to fund the plaintiff’s purchase of property and a few years later, to redeem the mortgage. During the lifetime of the testator, the testator also opened a bank account and safe deposit box in joint names with the plaintiff. The defendant never knew about the existence of this bank account and the safe deposit box.

The testator did not mention specifically about the Will but the plaintiff was told by the testator that the testator “had settled or taken care of everything for me and I need not have any worry about the future”. The plaintiff did not in his father’s lifetime ask him where he had kept the original Will. He did not know why his father had not made available to him the original Will nor disclosed to him its whereabouts. He said that his father must have had his reasons.

In conclusion, the plaintiff disagreed with the defendant that the testator had destroyed the original Will. The plaintiff submitted that it was unlikely that his father being such a careful man would have mislaid or lost the original Will.

Defendant’s Submission
The defendant testified that the testator and her was a loving couple and the couple grew closer to each other during the last 10 years of their marriage. The testator was known to the defendant as a fair-minded person, not at all old-fashioned Chinese businessman. She disagreed that her husband was a traditional Chinese man who would prefer to give more to his son than daughter. As such, she did not believe the testator would have disposed of the residue of his estate in the proportions set out in the Will.

The defendant submitted that the testator had made a CPF nomination under which 50% will go to the defendant and 25% each for the plaintiff and the adopted daughter. The defendant said she knew nothing about the Will and during the testator’s lifetime, the testator had never spoken to her about it nor had she seen it, whether original or any other like document. The defendant learned about the existence of the Will for the first time when the probate lawyers wrote to her on her appointment as the executrix and trustee of the Will. In that same letter, the lawyers disclosed that the plaintiff is a beneficiary under the Will and he wished to know when she would apply for probate.

The defendant also knew the testator as a very careful person in terms of keeping his documents as all important papers were kept by the testator in a locked drawer in his bedroom. The defendant thus submitted that it is very difficult to imagine that the testator, who kept in a locked drawer in his bedroom, his share certificates of his companies, personal papers such as birth certificates and etc., would lose his Will or leave it somewhere that it could not be found.

Court’s Decision
The plaintiff’s case is that though the original Will is missing and could not be found, it has been duly executed and it had never been revoked. Accordingly, the photocopy of the Will should be admitted to probate.
The defendant’s case is that the photocopy of the Will does not represent the last intentions of the testator and she submitted that the testator must have destroyed his Will in his lifetime with the intention of revoking it.
In order to make its decision, the court needed to look at the presumption of destruction animo revocandi which stated that a Will, which could not be found after the testator’s death, will be presumed to have been destroyed by the testator and this presumption will have effect unless there are sufficient evidence to rebut it. It is a presumption on good sense as it is highly reasonable to suppose that a very important document such as a person’s Will would be carefully preserved in a safe place and would not be either lost or stolen and if on the death of the testator, it could not be found in his usual repositories or where he/she resides, it is a high degree probable that the testator himself has purposely destroyed it. But this presumption, like all others of facts, may be rebutted by other evidence which raise a higher degree of probability to the contrary. And it is for the plaintiff in this case to rebut this presumption.

The court accepted both parties’ evidence that the original Will was last seen by the testator himself after he executed it and the original Will was in the hands of the testator after the execution of the Will. The sole question for the court is whether there is sufficient evidence before the court to rebut the presumption.

Having heard both parties and viewed the evidence, the court held that the presumption of destruction animo revocandi is rebutted in this case. The most significant evidence is whereby the plaintiff submitted that the testator had mentioned about the Will to the testator’s brother, who testified in court on the same. The testator’s brother confirmed that the testator had handed him a copy of a document with the word “Will” on top and he recognized the testator’s signature. The testator also asked him in Hokkien “wa eh wee cheok hoh boh” which in literal English translation means “Is my Will good?” to which the testator’s brother replied “yes”. The testator’s brother believed that the testator had wanted his opinion on the disposition of his residual estate and also wanting him to know that he had made a Will. The testator’s brother then told the other siblings that the testator had made a Will to this effect and one of the other siblings also testified in court confirming their knowledge of the Will of the testator.

The court thus inferred from this episode that, at any rate, the testator knew that he had made a Will, was conscious of it and intended that it should take effect. There is a continued intention to adhere to the Will and the court did not see any evidence that the testator may have changed his mind after executing his Will.
The testator had more than ample time to change his Will if he had wanted to provide more for the defendant and his adopted daughter and it seems highly improbable that the testator, who was a man of careful and meticulous disposition, would simply have destroyed his Will.
As to the CPF nomination argument submitted by the defendant whereby the testator nominated the defendant to receive 50% and the balance 50% to the plaintiff and the adopted daughter, the defendant said this nomination reflects the fairness with which the testator had treated his wife and children in his lifetime. The court rejected this argument as CPF nomination is separate and distinct from a testamentary disposition under a person’s Will. If indeed the testator had wanted to change his Will to bring it in line with his CPF nomination, the court would have expected the testator to make a new Will and not simply tearing up his Will without apparently telling anyone or his siblings.

Conclusion
A very important learning from this point is that after you have executed your Will, you cannot keep it a secret. You have to inform your family members of the existence of your Will or at the very least, inform your executor and trustee of your Will so that they will know about the existence of your Will and assist in managing your estate after your demise.
If you do not know where to keep your Will and if you have engaged our services for the preparation of your Will, we are able to provide custodian services for the safe-keeping of your Will. If you need further information on our custodian service, please feel free to contact us.