JACK HAMILTON GERARD DECEASED

In the case of Jack Hamilton Gerard Deceased, the court was called upon to determine whether a photocopy of the deceased's will, along with the original codicil, could be admitted to probate, particularly given that the original will had been lost. The primary beneficiaries under the will were the deceased's wife, Mrs. Gerard, and their two children, with Mrs. Gerard being entitled to significantly less under the will than she would receive in the event of an intestacy. The application for probate was supported by affidavit evidence and written consents from all relevant parties, including the deceased's wife, whose guardian ad litem neither consented to nor opposed the application and intended to abide by the Court's order.

The legal issues before the court included whether the presumption of the destruction of the will animo revocandi could be rebutted, the due execution of the will, the circumstances of its loss, and the accuracy and completeness of the photocopy will. Additionally, the court had to consider the deceased's practices, character, and disposition, the consents to the grant of probate, and the sui juris status of the deceased's wife. The court also took into account the public notification requirements stipulated in the Probate Rules 2004 (SA).

After considering all the evidence, including the testimonies that the deceased would not have intentionally destroyed and revoked his will, that he was satisfied with the will and codicil, and that he was unwilling to die intestate, the court found that there was sufficiently strong evidence to rebut the presumption of revocation. The court concluded that the will was a careful and complete disposition of the deceased's property and that it was more likely the will was lost rather than destroyed. Consequently, the court made an order admitting the photocopy of the will dated 25 August 2004 and the original codicil dated 30 November 2004 to probate.

The final orders included granting probate to the three executors named in the photocopy will and requiring that the estate be administered in accordance with the terms of the will and codicil. The court's decision was grounded in the totality of the evidence, which indicated that the will was lost rather than intentionally destroyed, and that the photocopy accurately reflected the deceased's last testamentary intentions.