All too often, succession lawyers come across original Wills which have been unstapled and restapled (sometimes many times) or which bear the telltale sign of a paperclip-shaped rust mark or the ghost of a tight bulldog clip.
The problem with this is that those staple holes, rust marks and indentations need to be satisfactorily explained to the Court before it will grant probate of said Will to the executor(s), and in turn enable them to get on with the job of administering the estate. Who knew that something as simple as a staple remover or paperclip could cause such a headache!
The reason that these features of an original Will require explanation is that they indicate that another document (such as a Codicil, which is a supplementary document that amends a Will) could at one time have been attached to the original Will and has become detached (whether accidentally or intentionally).
In a worst case scenario, the presence of such holes or marks could give others who have an interest in challenging a Will’s validity grounds to contest the executor’s probate application and even necessitate a hearing before a Judge (particularly if evidence exists that a Codicil was made at some time or another).
How can the holes or marks be explained?
The explanation will need to be provided to the Court by way of an affidavit known as an “Affidavit of Plight & Condition & Finding”. In summary, the affidavit will set out the condition of the Will, when it was located (including whether any other documents were attached to it) and, as far as this is known, how the holes or marks came to be made. The affidavit will need to be provided by one or more persons who have some knowledge of these matters and clearly trace the custody of the Will from when it was made, through to the time when the affidavit is made. In some cases, more than one person will need to provide affidavits in this regard.
Gathering such evidence may be fairly simple, but is often easier said than done, particularly if the person responsible for the holes or marks was the Will-maker themselves and they are now deceased. It will require contacting and interviewing each living person in the chain of custody of the Will, which will inevitably add additional cost and delay to what may otherwise have been a straightforward probate application.
What steps should you take?
For the Will-makers out there, a Will should be securely bound at the time of its execution. It should thereafter be stored in a safe and secure place, preferably within a plastic protective sleeve and ideally in the safe custody facility of a professional advisor, with the executor(s) notified of its whereabouts. The Will should not be unbound in any way, nor should anything be attached to it in a way which could damage or mark the document or otherwise later require explanation.
If it just dawned on you that you may have unwittingly damaged your own Will in this way, it is important that you seek legal advice about either explaining that damage in an Affidavit of Plight & Condition & Finding to be signed by you while you are living and which can be stored with the Will or potentially making a new Will.
For the executors and professional advisors involved in administering deceased estates, if a Will is located which contains staple holes or bears paperclip rust marks or indentations, or which is held together by a staple, paperclip, bulldog clip or other type of clip, it is important that the document be preserved in exactly the same condition in which it was found and that legal advice be obtained. The means of binding (if any) should not be disturbed. The circumstances of the Will’s discovery and its condition should be noted pending preparation of an Affidavit of Plight & Condition & Finding.
Takeaway points
So, before you reach for the stationery the next time you want to copy or scan an original Will, think again.
Always keep in mind that original Wills need to be handled with extreme care to avoid the above inconveniences. If the damage is already done though, act promptly to address it appropriately.
If you would like advice or assistance regarding a damaged Will, please contact our experienced Estates and Succession team.