When Witnesses Can’t Be Found: A Practical Problem in Probate

One problem that sometimes crops up in probate is proving that a will was properly executed when the witnesses can't be found.

I recently came across a case where the will, which was made by the now deceased testator myself at home, looked valid and had two witness signatures, but no one could identify or find either witness when applying for probate.

As many practitioners know, the Probate Office may ask for an affidavit confirming the will was properly executed if there is any doubt about its validity. Usually, this is simple: one of the witnesses swears that the will was executed correctly under section 78 of the Succession Act 1965.

But what do you do if neither witness can be found?

In this case, my colleague tried hard to find the witnesses, but he still could not identify them.

The answer was to gather other types of evidence. The executor named in the will swore an affidavit, exhibiting the will, and confirmed the following:

• The will was regular on its face.
• There were no suspicious circumstances surrounding its execution.
• The testator's signature appeared consistent with known samples.
• The document had been held in proper custody.

In addition, evidence was provided regarding the testator's testamentary capacity and the absence of any challenge to the will.

Ultimately, the Probate Office accepted the evidence and issued the Grant.

Key takeaway: The main point is that missing witnesses can make probate harder, but it does not have to stop the process. If you prepare a clear affidavit with good supporting evidence, you can still get probate granted.

This shows why it is important to record full details for each witness when attending to a will. Doing so can save a lot of time and money later.