Challenging a Will: Reasons to Contest a Will in South Africa

When contesting a Will you need to determine if any of the following apply. There are several legal grounds for contesting a will in South Africa, including lack of testamentary capacity, undue influence, fraud, and failure to adhere to legal formalities:

1. Lack of Testamentary Capacity:

To make a valid Will the testator must have sufficient mental capacity to understand the nature and effects of making a Will. This includes understanding their assets, who the beneficiaries are and the distribution of the estate. If there is doubt about the testator’s mental capacity medical and legal evidence can be used.

2. Invalid Execution:

A Will is invalid if it doesn’t meet the legal formalities for execution. In South Africa a Will must be signed by the testator in the presence of two competent witnesses who also sign it. Witnesses can’t be beneficiaries or have any interest in the Will to avoid conflict of interest.

3. Lack of Knowledge and Approval:

The testator must know and approve of the contents of the Will. If there’s evidence the testator didn’t fully understand or approve the terms a challenge may succeed. This can happen if there are language barriers, physical limitations or suspicious circumstances surrounding the preparation of the Will.

4. Failure to Provide for Dependents or Spouse:

South African law requires that dependents and spouses be adequately provided for. If a Will doesn’t meet this requirement it can be contested. This ensures that those financially dependent on the deceased aren’t left out.

5. Undue Influence:

If it’s proven the testator was coerced or unduly influenced to make or alter a Will it can be contested. This influence must be significant enough to override the testator’s free will.

6. Fraudulent or Forged Wills:

A Will is invalid if there’s forgery or fraud involved. Evidence of a forged signature or misleading actions that affect the Will’s terms can be enough to invalidate it.

Real life examples and legal precedents can give you an idea of how Will challenges play out in South Africa:

• Case Study 1: Testamentary Capacity:

In a recent case a Will was contested on the grounds the testator was of unsound mind. The court considered medical records and witness statements and concluded that while the testator had moments of confusion they understood the implications of the Will at the time of signing. The challenge was unsuccessful due to lack of evidence of incapacity. If the will had been declared invalid, the estate would have been distributed according to a previous valid will.

• Case Study 2: Undue Influence:

Another case involved allegations of undue influence by a caregiver who became the primary beneficiary. A formal objection was raised regarding the will’s validity. The court found that the testator while under significant pressure due to dependency still had the mental strength to resist coercion. The decision highlights the need to prove substantial influence that overrides the testator’s true intentions.

Contesting a Will involves:

• Seeking Legal Advice: Contesting a Will requires consulting with an estate lawyer who knows South African law. They will advise on the success of your claim and the costs involved. Affected parties, such as children and surviving spouses, may have specific rights to challenge a will.
• Gathering Evidence: You need strong evidence. This includes statements from those who knew the testator, medical records and any documentation that supports claims of forgery or undue influence.
• Mediation and Resolution: Often disputes can be resolved through mediation without going to court. This is a less adversarial process and can result in a compromise.
• Court Proceedings: If mediation fails the case goes to court. Here a judge will consider the evidence and make a decision. Be prepared for this to be a long and costly process.