Can Someone Contest A Will In South Africa?
A will provides important instructions about how a person’s estate should be distributed after their death. However, disputes can arise when family members or other interested parties believe that a will is invalid or does not reflect the deceased’s true wishes. Being unhappy with an inheritance is not, on its own, enough to invalidate a will. So, can someone contest a will in South Africa, and what grounds may justify a challenge?
Yes, you can contest a will in South Africa, but you must have valid legal grounds and supporting evidence. These may include improper execution, lack of testamentary capacity, undue influence, fraud, or concerns about the will’s authenticity.
South African law generally respects a person’s freedom to decide how their estate should be distributed. A will cannot be disregarded simply because a family member considers its provisions unfair. Below, we explain when someone may contest a will, the possible grounds for doing so and what happens if the challenge succeeds.
Can Someone Contest A Will In South Africa?
Yes. You can challenge the validity of a will in appropriate circumstances, but there is an important difference between disliking its contents and having legal grounds for challenging it.
An Unfair Outcome Is Not Necessarily Grounds For A Challenge
A parent may leave more to one child than another, exclude a relative or leave assets to somebody the family did not expect to inherit.
While this may cause disappointment or suspicion, an unusual distribution does not automatically invalidate the will. African law generally recognises freedom of testation, subject to certain legal limitations.
Someone who wants to challenge a will therefore needs more than dissatisfaction with the inheritance they received.
Can A Will Be Challenged If It Was Not Properly Signed?
One potential ground for challenging a will is a failure to comply with the formal requirements of the Wills Act 7 of 1953.
A Will Must Meet Certain Formalities
Section 2 of the Wills Act sets out requirements for executing a valid will.
Among other things, a will must ordinarily be signed at its end by the testator, or by another person in the testator’s presence and at their direction. The testator’s signature must generally be made or acknowledged in the presence of two competent witnesses who are present at the same time, and the witnesses must also sign in the testator’s presence.
Additional requirements can apply where another person signs on behalf of the testator or the testator signs by making a mark.
However, a technical defect does not necessarily mean that a document will always be rejected. In certain circumstances, section 2(3) of the Wills Act allows a court to direct the Master of the High Court to accept a document despite non-compliance with the usual formalities.
Can You Contest A Will Because Of Mental Capacity?
Another possible reason to contest a will is concern about whether the deceased had the mental capacity required to make it.
The Testator Must Understand What They Are Doing
Section 4 of the Wills Act provides that a person aged 16 or older may make a will unless, at the time of making it, they are mentally incapable of appreciating the nature and effect of their actions.
The timing is important. Age, physical illness or a medical diagnosis does not automatically mean that someone lacked testamentary capacity. The relevant issue is whether they understood the nature and effect of making the will at that particular time.
Medical records, professional opinions and evidence from people who interacted with the deceased around the time the will was made may therefore become relevant in a dispute.
What If Someone Pressured The Deceased?
Families may become suspicious when a will changes unexpectedly, particularly if one person suddenly receives a substantial benefit.
Influence alone, however, does not necessarily invalidate a will.
Undue Influence May Provide Grounds For A Challenge
A valid will should ultimately reflect the testator’s wishes.
Undue influence may become legally significant where the pressure exerted on a person is sufficiently serious that the resulting will no longer reflects their genuine wishes.
A person seeking to challenge a will on this basis may therefore need evidence concerning the deceased’s vulnerability, their relationship with the person accused of exercising influence and the circumstances surrounding the preparation and signing of the will.
An unexpected change from an earlier will may be relevant, but it does not by itself prove undue influence.
What If The Will Is Forged Or Fraudulent?
Some estate disputes involve more serious allegations, such as claims that the deceased’s signature was forged or that the document presented as their final will is not genuine.
The Authenticity Of A Will Can Be Investigated
Where there are legitimate concerns about authenticity, evidence about the will’s preparation and signing may need to be examined.
This could include previous wills, correspondence, instructions given to the person who prepared the document, evidence from witnesses and, where appropriate, expert evidence relating to a disputed signature.
Because allegations of fraud or forgery are serious, they should be supported by credible evidence, not suspicion alone.
What Evidence Is Needed To Contest A Will?
The required evidence depends on the grounds for the challenge.
Evidence Will Depend On The Dispute
Where mental capacity is questioned, medical records and witness testimony may be relevant. Where undue influence is alleged, evidence about the deceased’s circumstances and relationships may become important.
Earlier wills, correspondence, drafting instructions, and information from witnesses present when the document was signed may also help establish what happened.
For this reason, it is useful to gather relevant documentation before deciding whether there is sufficient evidence to proceed with a legal challenge.
What Happens If The Will Is Declared Invalid?
Successfully challenging a will does not mean that the person who brought the challenge automatically inherits the estate.
Instead, what happens next will depend on whether another valid will exists.
An Earlier Will May Apply
If the deceased previously made another valid will, that document may potentially govern how the estate is distributed once the later will is declared invalid.
The beneficiaries and distribution of the estate could therefore be very different from those contained in the disputed will.
The Estate Could Be Distributed Intestate
If there is no earlier valid will, the deceased may be treated as having died intestate.
Their estate would then be distributed according to the Intestate Succession Act 81 of 1987.
This is important to understand before deciding to contest a will, because successfully invalidating it may not necessarily result in the inheritance the challenger expects.
What Should You Do If You Believe A Will Is Invalid?
Disputes surrounding wills can become complicated, particularly when administration of the deceased estate has already started.
Obtain Legal Advice Early
If you have genuine concerns about a will, early legal advice can help determine whether you have sufficient grounds to challenge it.
An attorney can examine the disputed will, previous wills and the circumstances surrounding its preparation and execution. This can help determine whether there is a legally supportable basis for further action.
Early advice can be particularly important where an executor has already begun administering the estate or assets are due to be distributed to beneficiaries.
So, can someone contest a will in South Africa? Yes, but disagreement with the deceased’s decisions is not enough. There must be a valid legal basis for challenging the will, supported by appropriate evidence.
Improper execution, lack of testamentary capacity, undue influence, fraud and concerns about authenticity can potentially result in a will dispute. Because invalidating a will can fundamentally change how an estate is distributed, obtaining professional advice before taking action can help you understand both your legal position and the possible consequences.
At Burnett Attorneys & Notaries, we understand that disputes concerning a loved one’s will can be legally complex and emotionally difficult. Our team can help assess the validity of a will, investigate possible grounds for a challenge, and advise beneficiaries and family members on their rights. We provide clear, practical and discreet guidance to help you understand your legal options and determine an appropriate way forward. Contact us to arrange a confidential consultation.