I was told that if I don’t create a Will through a lawyer, somebody will end up challenging the Will. Is that true?
Introduction: Do I need a Lawyer to Draft a Will?
Many people believe that a Will not drafted by a lawyer is more likely to be contested. Some think that a professionally drafted Will is less likely to be challenged. But the reality is any Will, whether drafted by a lawyer or not, can be contested if it doesn’t meet the legal requirements.
Copyright: bialasiewicz / 123RF Stock Photo
What is Contesting a Will?
Contesting a will is a legal process that involves challenging the validity of a will. It is a formal objection raised against the will, based on the contention that the will does not reflect the actual, true intent of the testator. This formal objection can target the entire will or specific parts of it. The process of contesting a will is intricate and often requires the expertise of an attorney to navigate the legal complexities involved.
1. Improper Execution of the Will and Legal Formalities
A common reason for contesting a Will in South Africa is improper execution. To be valid, a Will must comply with the Wills Act 7 of 1953. This includes:
- Witnesses: Two competent witnesses must sign the Will in the testator’s presence. Many states require the presence of two witnesses for a will to be deemed valid. They must not be beneficiaries or related to beneficiaries to avoid conflicts of interest.
- Presence: The testator and witnesses must all be present at the signing.
- Signature: The testator’s signature should appear on each page, acknowledging the contents.
Not following these steps can make a Will open to challenges based on improper execution.
2. Mistakes in the Will
Ambiguities or omissions of key clauses can lead to disputes. Any mistake that clouds the testator’s intention can be contested. Common mistakes include:
– Unclear Allocations: Ambiguities in the distribution of assets can cause confusion.
– No Residual Clauses: Make sure all unlisted assets are covered to avoid gaps.
Addressing these during drafting will prevent misunderstandings and reduce the chances of successful challenges.
3. Fraudulent Wills
Fraud occurs when the document is not genuine. This includes forged signatures, alterations without consent or fraudulent inducement. Proving fraud requires evidence of deceitful conduct during the creation of the Will.
– Forgery Detection: Handwriting analysis can verify signatures.
– Unauthorized Changes: Alterations must be documented and authorized.
Preserving the integrity of the Will is key to defending against fraud claims.
4. Testamentary Capacity and Mental Capacity
Testamentary capacity refers to the testator’s mental capacity to understand the nature and consequences of making a Will. Contesting on these grounds is common when Wills are made later in life. Proof requires:
- Mental Soundness: Testator should know their assets and the Will’s implications.
- Legal Advice: Medical or legal declarations to confirm capacity.
A Will made during a period of mental clarity is less likely to be contested on capacity grounds.
5. Unusual Family Circumstances
Complex family situations can lead to Will disputes. This can include hidden children, contested relationships or vague family history. Clear explanation of family circumstances can reduce these risks.
– Documentation: Explain why certain family members are included or excluded.
– Professional Guidance: Get legal advice to craft a clear family story.
By including these dynamics in the Will, disputes about unusual family situations can be avoided.
6. Undue Influence
Undue influence is coercion that clouds the testator’s true intention. This is a common ground for contestation when the Will is different to previous plans. A previous will with different provisions can be an indicator of undue influence.
- Pressure Indicators: Look for sudden benefits to specific individuals.
- Dependency Situations: Consider power dynamics if the testator is dependent on someone for care.
Ensuring the testator makes independent decisions is key to defending against claims of undue influence.
7. Dependence Provisions
South African law requires fair provision for certain dependents, including spouses or minor children. Failing to do so can lead to successful challenges based on need by interested and affected parties.
- Qualified Dependents: Who are dependents under the law?
- Fair Share: Allocate resources to meet dependents’ needs.
Full and fair coverage of dependents will protect against challenges based on lack of provision.
8. Legal and Public Policy Breaches
A Will with provisions that breach the law or public policy can be challenged. Courts can strike out such provisions. For example, discriminatory clauses may contravene equality rights. The court process involved in contesting such provisions can include various steps and challenges initiated by interested parties.
- Legal Compliance: Make sure the Will complies with South African law.
- Exclude Illegality: Avoid provisions that infringe public policy.
By focusing on legal and moral grounds you will protect your Will from challenges on this basis.
Who Can Contest a Will?
Anyone who has an interest in the estate can contest a will. This includes beneficiaries who feel they were not adequately provided for, as well as family members who may have been excluded entirely. To contest a will, one must have legal standing, meaning they must have a valid reason for challenging the will. Common grounds for contesting a will include lack of testamentary capacity, undue influence, fraud, or forgery. Understanding these grounds is crucial for anyone considering a challenge.
The Legal Process of Contesting a Will
The legal process of contesting a will involves several critical steps. Initially, one must file a petition in probate court, which serves to notify the court and the estate that a challenge is being made. Following this, evidence must be gathered to support the challenge. This evidence can include medical records, witness statements, and other relevant documentation. The case is then presented in court, where a judge will make a decision based on the evidence provided. Given the complexity and emotional nature of this process, having the guidance of an experienced attorney is essential.
Costs and Time Limits
The costs of contesting a will can vary widely, depending on the complexity of the case and the duration of the court proceedings. Legal fees can be substantial, and if the challenge is unsuccessful, the person contesting the will may be required to cover the legal costs of the other parties involved. Additionally, there are specific time limits for contesting a will, which vary by jurisdiction. In South Africa, for instance, a will can be contested within six months after it has been admitted to probate. It is crucial to discuss potential costs and time limits with your attorney before proceeding to ensure you are fully informed and prepared.
How to Avoid Will Challenges
No Will is completely risk-free but here are some strategies to reduce the risk:
– Professional Drafting: Not compulsory but review by a lawyer ensures clarity.
– Regular Updates: Update to reflect changing circumstances and assets.
– Open Communication: Discuss your intentions to prevent future disputes.
Conclusion:
Contesting a Will in South Africa is based on specific legal grounds. By knowing these and taking proactive steps, you can draft a Will that truly reflects your wishes and minimises the risk of challenge. Whether through professional advice or compliance, these steps will contribute to a secure estate plan. However, it’s important to be aware that contesting a will can result in significant expenses, including not just attorney fees but also court costs and other associated filing fees.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
- The Ultimate Guide to Preparing a Will – 2024 - 19 November 2024
- Intestate Succession in South Africa | What Happens If I Die Without a Will? How LegalWills Offers an Affordable Solution - 15 February 2024
- A Guide to Writing a Will for Young Adults in South Africa - 23 September 2022
