Challenging a will: Understanding the grounds and legal options

INTRODUCTION

To execute (make) a valid will, the testator must have the necessary testamentary capacity at the time of making the will. If this capacity is absent in any particular instance then the supposed will is invalid ab initio. The Wills Act governs the formal capacity of a testator to make a will. Seeing that the Wills Act partially confirmed the common law and partially amended it, the following explanation will still have to refer to aspects of the common law. The mere fact that a testator had the formal capacity to make a will does not guarantee the validity of the will. Any impairment to free expression of the testator’s wishes at the time the will is made may also result in the will being invalid. There are factors that play a role and must consequently also be dealt with in the context of testamentary capacity.

GROUNDS FOR CONTESTING A WILL

Before initiating the process of contesting a will, you must understand the legal grounds that allow for this action. In South Africa, a will can be contested if there is evidence of:

Fraud

Instances of fraud typically refers to situations where there has been deceit, misrepresentation, or dishonestly involved in the creation, execution or alteration of the will. Examples of fraud would be:

• Forging the testator’s signature on the will;
• Misrepresenting the contents of the will to the testator;
• Concealing or withholding information from the testator that would have influenced their decisions regarding the will.

Undue influence 

In an old decision of the Appellate Division, the court took the opportunity in Spies v Smith 1957 (1) SA 539 (A) to give this concept it’s meaning in the testamentary context. When it comes to undue influence, this is what the court had to say:

“…it thus appears that a last will may in fact be declared invalid if the testator has been moved by artifices of such a nature that they may be equated by reason of their effect to the exercise of coercion or fraud to make a bequest which he not otherwise would have made, and which therefore expresses another person’s will rather than his own. In such a case, one is not dealing with the authentic wishes of the testator but with a displacement of volition and thus the will not upheld.”

The key question seems to be whether there has been a displacement of volition, in other words whether the will does not in fact contain the wishes of the testator but those of someone else.

Lack of testamentary capacity

Section 4 of the Wills Act, which governs testamentary capacity, reads as follows:

“Every person of the age of sixteen years or more may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act, and the burden of proof that he was mentally incapable at that time shall rest on the person alleging the same.”

Apart from the requirement that the testator must have reached a certain age, he must also be mentally capable of understanding the nature and the effect of his act at the time of making the will. The onus of proof of mental incapacity rests with the person who makes the allegation. Obvious examples of mental capacity may include mental illness, drunkenness and incapacity due to the effect of drugs.

Will not have been executed properly

For a will to be valid, it must be in writing and must be signed by the testator (i.e. the person making the will) in the presence of two witnesses who must also sign the will in his or her presence. If that has not been done, the “will” is not valid. You may also have concerns as to whether the signatures are genuine, which we can help you to investigate.

CONCLUSION

In conclusion, contesting a will is a complex legal process that requires careful consideration and adherence to specific requirements. Understanding the grounds for challenging a will, such as lack of testamentary capacity, undue influence, fraud, improper execution, or mistake, is crucial in determining the validity of a will. It is important to seek legal advice and guidance to navigate the legal complexities involved in contesting a will. By gathering evidence, presenting a compelling case, and following the necessary legal procedures, individuals can seek justice and ensure that the wishes of the deceased are upheld in a fair and lawful manner. Ultimately, contesting a will should be approached with caution and diligence to protect the integrity of the deceased’s final wishes and ensure a just outcome for all parties involved.

Contact our team of experienced Wills and Estate Attorneys and we will guide you through every step of the process.