MAVROS v PACHYDAKIS 1992 (2) ZLR 94 (S)

Flynote

Succession — lost will — presumption that will destroyed with intention of revoking — presumption not rebutted

Headnote

The respondent's late husband had executed a will ten years prior to his death by suicide. All parties accepted that the testator had, in this will left his entire estate to his wife. On the death of the husband, his will could not be found despite a thorough search. The respondent instituted proceedings in the High Court to have this will accepted by the Master.

The High Court ruled the presumption that the testator had destroyed the will with the intention of revoking had been rebutted and ordered that the Master accept the will as reflecting the testamentary intention of the deceased. (The High Court decision is reported as Pachydakis v The Master of the High Court & Ors 1991 (1) ZLR 95 (H).) Overturning the decision of the High Court, the Supreme Court reiterated that when a will which was last known to have been in the possession of the testator cannot be found after his death, it raises a rebuttable presumption that the testator destroyed it with the intention of revoking it. On the facts, that presumption had not been rebutted. The inescapable inference from the facts was that the testator must have destroyed the will. He committed suicide in a state of emotional turmoil. His wife wanted him to leave her and neither his family or friends would take him in. The deceased was in possession of the will shortly before his death. He was a tidy and methodical man. He had put all other important documents in his wife's wardrobe. Statements made by him some two weeks before he took his life that he did not intend to change his will could not be taken as evidence of an immutable intention because he was in a state of emotional turmoil.