Written by Roy Bregman, an admitted attorney with over 51 years’ experience in wills and deceased estates.
Last updated: 9 July 2026
| Key Takeaways
• If an original will cannot be found after death, the law presumes the deceased destroyed it to cancel it, but this presumption can be rebutted, meaning disproved, with good evidence. • The presumption only applies if the will was last known to be in the deceased’s own possession. If nobody knows who held it, the presumption does not even arise. • In June 2026, the Pretoria High Court accepted a scanned copy of a will as the deceased’s last will, relying on his email trail and the sworn statements of the two witnesses. • The safest protection is prevention: keep your original will in professional safe custody, tell your executor where it is, and keep proof of where it is stored. |
Imagine losing your life partner of 22 years, finding a copy of the will that provides for you, and then being told the copy is worthless because the original cannot be found. That is exactly what happened in a case decided by the High Court in Pretoria on 10 June 2026, Van Deventer v Roodt N.O. and Others . The judgment is a clear, practical illustration of how South African courts deal with lost wills, and it carries lessons for every person who has signed a will, and every family who cannot find one.
A lost original will does not automatically mean the deceased’s wishes fall away, but it does create a serious legal hurdle. The Master of the High Court, the government official who supervises deceased estates, normally requires the original signed will before an estate can be administered under it. If only a copy exists, the family must apply to the High Court for an order declaring the copy to be the deceased’s last will and directing the Master to accept it.
That application succeeds or fails on evidence. The court will want to know that the will was validly signed, that the deceased did not cancel it before death, and how the original came to disappear.
Section 2(1) of the Wills Act 7 of 1953 sets out the formalities, the formal signing requirements, for a valid will. The person making the will, called the testator, must sign at the end of the document. Two competent witnesses, both present at the same time, must see the testator sign and must then sign the will themselves. If the will runs to more than one page, every page must also be signed.
Section 2(3) of the Act gives the court a rescue power, often called the condonation power. If a document does not tick every formal box, the court must still order the Master to accept it if the court is satisfied that the deceased personally drafted or executed it and intended it to be their will.
The presumption of revocation is a common law rule that works like this: if a will was last known to be in the testator’s own possession, and the original cannot be found after death, the law assumes the testator destroyed it on purpose to cancel it. Lawyers say the will was destroyed animo revocandi, a Latin phrase that simply means “with the intention of revoking it”.
The presumption is rebuttable. In plain terms, it is a starting assumption, not a final answer, and it can be overturned by evidence showing the deceased had no reason to cancel the will and every reason to keep it.
The presumption never arises if the will was not last in the testator’s hands. In Theart v Scheibert and Others [2012] ZASCA 131, the Supreme Court of Appeal, our second-highest court, held that where there is simply no evidence about who possessed the will before death, the presumption does not apply. The party attacking the copy cannot rely on an assumption; the enquiry moves straight to the ordinary evidence.
The table below summarises the main scenarios families face, and what each one requires.
| Situation | What the law says | What you must prove |
| Original will is found and valid | The Master of the High Court accepts it, and the estate is administered under it. | Nothing further, provided the will meets the formal signing requirements. |
| Only a copy exists, original lost | The High Court can declare the copy to be the last will and order the Master to accept it. | That the will was properly signed, that it was not revoked, and how the original came to be lost. |
| The document does not meet the signing formalities | Section 2(3) of the Wills Act lets the court rescue the document if the deceased intended it to be their will. | Clear evidence that the deceased personally made the document and intended it as their final will. |
| No will can be found or proved at all | The estate is divided under the Intestate Succession Act, a fixed formula favouring spouses and blood relatives. | Nothing, but the deceased’s actual wishes fall away, and life partners can be left out entirely. |
The court accepted the scanned copy as the deceased’s last will, because the evidence of his intention was overwhelming. Mr Goosen died in February 2024, survived by his life partner of about 22 years, his mother and his sister. His partner found a copy of a 2018 will that left him the house, the car and 70% of the liquid assets. The original could not be found anywhere, and the deceased’s mother and sister argued that an old 1992 will, signed when the deceased was only 19, should stand instead.
The family relied on the presumption of revocation. The court rejected that argument for the same reason as in Theart: nobody could say who possessed the original will at the time of death, so the presumption never arose. The original may have been lost in transit to the bank, misplaced, or destroyed without the deceased’s knowledge.
The deceased’s emails told a complete story. Over 2018, he asked his bank to update his will, gave detailed instructions on who should inherit what, reviewed and corrected drafts, and finally emailed the bank a scanned, signed copy with the words “Signed will attached”. Both witnesses confirmed under oath that they watched him sign. The court found it inherently improbable that a man who had lived with his partner for over two decades intended a will signed in his teens to govern his estate and declared the 2018 copy to be his last will.
The judgment applies the test set by the Supreme Court of Appeal in De Reszke v Maras and Others [2005] ZASCA 137: the intention that a document should be one’s will must exist at the time the document is drafted or signed. The email of 27 November 2018 proved exactly that.
Courts accept copies where the evidence is strong and reject them where it is not. In S v V N.O. and Others [2016] ZAGPJHC 221, the Johannesburg High Court accepted a scanned copy of a will that the deceased had emailed to his financial adviser, on facts strikingly similar to Van Deventer.
The opposite result followed in N.N.H v L.L.H and Others [2023] ZAECMHC 36. There, a copy of a 1988 will surfaced only in 2018, two years after the deceased died and long after he had divorced the person it benefited. The court refused to accept the copy, finding that the deceased’s conduct pointed to revocation.
And in Du Plessis v Reniers and Another [2025] ZAMPMBHC 39, the Mpumalanga High Court refused to rescue a defective will because it could not be established that the deceased was personally involved in drafting it. The condonation power in section 2(3) only helps documents the deceased personally made or caused to be made, with the intention that they would be a will.
Act methodically and keep records of every step. Here is the practical sequence we recommend:
Prevention costs almost nothing; a lost-will application can cost the estate a fortune and delay it by years. Sign your will properly before two witnesses, place the original in professional safe custody with your attorney or bank, and obtain written confirmation of where it is held. Tell your executor and at least one trusted family member where the original is kept and review the will after every major life event such as a marriage, divorce, birth or death.
The Van Deventer judgment confirms that South African courts look at substance, not just paperwork. A scanned copy, backed by a credible chain of evidence, can be given full effect, while the presumption of revocation only bites when the will was last known to be in the deceased’s own hands. But litigation of this kind is expensive, slow and emotionally draining for a grieving family. The better path is a properly signed, professionally stored original will, reviewed regularly, so your loved ones never have to fight over a copy.
Yes. The High Court can declare a copy to be the deceased’s last will and order the Master to accept it. The applicant must prove the will was validly signed, explain how the original was lost, and rebut any presumption that the deceased destroyed it to cancel it.
The Master of the High Court will not simply accept a copy. The family must apply to the High Court with evidence of valid signing, diligent searches and the deceased’s intention. If no will can be proved, the estate is divided under the Intestate Succession Act instead.
It is a common law rule that if a will last known to be in the testator’s possession cannot be found after death, the testator is presumed to have destroyed it intending to cancel it. The presumption can be rebutted with evidence, and it does not apply if a third party held the will.
The person asking the court to accept the copy carries the burden. They must show the will was properly executed and, if the presumption of revocation applies, produce evidence that the deceased had no intention of cancelling it, such as emails, witness affidavits and the surrounding family circumstances.
A scan is not a substitute for the original, but courts have accepted scanned copies where the original was properly signed and later lost. The scan, together with witness affidavits and correspondence, can prove both valid execution and the deceased’s intention that the document be their last will.
| FREE DOWNLOAD: Lost Will Emergency Checklist
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If you cannot find an original will, or you are worried about how your own will is stored, do not wait for the Master to raise a query. Bregman Moodley Attorneys has been taking the sting out of legal problems since 1974, and lost-will applications, deceased estate administration and will drafting are at the heart of what we do.
Call Roy Bregman on +27 (0)11 646 0335, email roy@bmalaw.co.za or visit bregmans.co.za. The first conversation costs you nothing and could save your family years of litigation.