When acting in estate matters, lawyers occasionally encounter situations where wills have been inadvertently tampered with by will-makers during the period of storage since the will was signed. Seemingly trivial actions can have far-reaching consequences. For example, staple holes, rust marks, and indentations must be satisfactorily explained to the Court as a part of an application for a grant of probate. Failure to provide a plausible explanation can lead to complications, challenges to the will’s validity, and potentially even expensive hearings before the Court.
Understanding the Importance:
Staple holes, rust marks, and indentations are potential indicators that additional pages or documents, such as codicils, may have been attached to the original will but have become detached. In the worst-case scenario, the presence of these marks may provide grounds for interested parties to contest the validity of the will and complicate the probate application. To address these concerns, when such marks appear on the will, the Court requires an “Affidavit of Plight & Condition & Finding.” This affidavit outlines the will’s condition, including any attached documents, details about its storage and discovery, and the circumstances surrounding the appearance of holes or marks. The affidavit must establish a clear custody trail, starting from the will’s creation up to the time the affidavit is submitted. Depending on the situation, multiple individuals may need to provide such affidavits.
While gathering evidence for the affidavit may appear straightforward, it often proves to be a complex task, particularly when the person responsible for the damage is the deceased will-maker. Lawyers must diligently contact and interview every individual involved in the will’s custody chain, which inevitably adds costs and delays to what could have been a straightforward probate application.
Guidelines for Will-Makers:
Will-makers play a crucial role in preserving the integrity of their wills. To ensure utmost protection, it is advised to securely bind the will at the time of execution. After a will is signed, it should be stored in a safe and secure location, preferably within a protective plastic sleeve or similar. Entrusting the will’s safekeeping to a professional advisor adds an extra layer of security, and it is a step to be encouraged. Additionally, the appointed executor should be informed of the original will’s location and storage arrangements. Will-makers should refrain from unbinding the will or attaching anything that could potentially damage or mark the document, thereby avoiding the need for further explanations.
If a will-maker unintentionally damages their own will, seeking prompt legal advice is essential. An experienced lawyer can assist in explaining the damage through an “Affidavit of Plight & Condition & Finding” that can be signed while the will-maker is alive. This affidavit can then be stored alongside the will, ensuring that the necessary explanation is readily available. In some cases, creating a new will might be necessary to mitigate any potential consequences arising from the damage.
Guidance for Executors and Professional Advisors:
For executors and professional advisors involved in administering deceased estates, handling any discovered will with care is vital. It is crucial to preserve the document in its original condition. The means of binding should not be disturbed, and legal advice should be sought promptly in the event of any damage.
ABKJ Lawyers does maintain secure document storage as part of its services for its clients and encourages the storage of wills and other important documents within that facility.
For further help, read our articles on Wills & Estate Law: