Masih v Masih

Masih v Masih is a succession dispute concerning the validity of a lost will. The deceased, who passed away in 2018, made a will in 1993 which was deposited in the safe custody of Melville McGregor Lawyers. However, the original will could not be located, although a copy was found. The applicant sought to have the lost will admitted to probate, while the respondent argued that the presumption of revocation by destruction applied. The court was required to determine whether the deceased had retaken possession of the original will before his death, and if not, whether the presumption of revocation arose.

The court examined the evidence and circumstances surrounding the disappearance of the will. It considered the safe custody card found at the law firm with a red line drawn through it, but could not determine the meaning of the red line. The court also noted that the deceased had left the original will in the safe custody of the law firm in 1993, and that the firm underwent a merger in 2008. The court held that the applicant had not discharged the onus of proving that the deceased had retaken possession of the original will prior to his death. Therefore, the presumption of revocation by destruction arose, and the application to admit the lost will to probate was dismissed.

The court ordered that the application be dismissed and that the estate pay each party’s costs on the indemnity basis, unless either party filed written submissions to the contrary within seven days. This decision highlights the importance of ensuring that important documents such as wills are properly stored and secured, and the potential consequences of failing to do so.