Contesting a Will
Key Takeaways:
Contesting a will is a legal process challenging its validity.
Grounds include undue influence, fraud, or testamentary capacity concerns.
Timeliness, valid reasons, and legal guidance are crucial in pursuing a successful will contest.
A will is a formal, signed, written document, in which the deceased (now referred to as the testator) voluntarily sets out their instructions in unambiguous terms as to how their assets are to be “passed down” or inherited following their demise.
What does it mean to contest a will?
Contesting a will essentially refers to raising a formal objection against the validity of a will, based on the contention that the will does not reflect the actual, true intent of the testator. A will may be challenged or contested in its entirety or in part.
What are the grounds for contesting a will?
There are various reasons why interested parties would want to challenge a seemingly valid will.
It could be due to a relationship that the party had with the deceased, claiming that the deceased promised to leave them a particular item or a particular amount of money. They may insist that the will (as it stands) could not conceivably have been the deceased wishes (caused by suspicions they have regarding heirs who are set to benefit). Or it may stem from bitterness as a result of being disinherited from the will feeling that they were overlooked or that they were, in fact, entitled to inherit.
But it must be remembered that no person (under South African law), has the inherent right to inherit. However, the freedom of a testator and their freedom of testation to dispose of their estate as they deem fit, is not absolute and although a testator is permitted to disinherit his/her spouse or his/her children, there are instances where, based on public policy, the law restrains testators in the exercise of their testamentary freedom.
Below are some of the more common ways in which a will is contested (and the testator’s freedom limited) –
Testamentary Capacity:
Section 4 of the Wills Act governs testamentary capacity. In addition to the requirement that the testator must have reached the specified age, the testator must have -
sufficient mental capacity to understand the nature and effect of the testamentary act;
understand and recollect the nature and situation of his/her property, and
remember his/her relations and those whose interests are affected by the will.
The question now is whether, as a consequence of a mental disturbance or impairment, the testator is mentally incapable of understanding the nature and effect of his/her act (for example the consumption of alcohol cannot in itself invalidate juristic acts (see Thirion v Die Meester en Andere 2001 (4) SA 1078 (T))
As a general test for testamentary capacity, the test quoted in Banks v Goodfellow 1870 LR 5 QB, remains the law:
‘The testator must … be possessed of sound and disposing mind and memory … . But his memory may be very imperfect … and yet his understanding may be sufficiently sound for many of the ordinary transactions … were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?’
Legal formalities
The fact that a child was disinherited (for whatever reason) does not deprive him/her of this claim against the deceased estate. The duty of a parent to support their child does not terminate upon their parent’s death. Therefore, a child can lodge a claim against their deceased parent’s estate and such support endures until the child is self-supporting. This includes both minor children and children over the age of 18 (however a child over the age of 18 who wishes to lodge a claim against the deceased estate will need to be provide proof that they are unable to support themselves and the extent to which they require support). It is important to note that a child’s maintenance claim ranks above all other claims against the estate including those of heirs and legatees, except for debts owed to creditors of the estate. A minor child’s claim is lodged by the legal guardian on behalf of the minor child, while a child over 18 years of age can lodge their own claim.
Similarly, in terms of the Maintenance of Surviving Spouses Act 27 of 1990, if a marriage is dissolved by death, the surviving spouse will have a claim against the deceased spouse’s estate for the provision of his/her reasonable maintenance needs until death or remarriage, insofar as he/she is unable to provide for such needs himself/herself.
These changes may be made against the estate of the testator despite the provisions of his/her will and accordingly allow interested and affected parties to challenge a will on the specific grounds as set out above.
Forgery
A will can be contested on the ground that the document was forged or that despite the will being genuine, the signature intended to be accepted as the testator’s signature, was forged. Where the authenticity of the will is in question or it is attacked on the basis that it is a forgery, evidence such as statements made by the testator, the testator’s instructions and statements of testamentary intention will need to be provided.
In terms of Section 4A of the Wills Act 7 of 1953, any person who is a witness to a will, who signs on behalf of the testator, or who writes out the will or any part in his or her own handwriting, as well as the spouse of any person involved in such a capacity, is disqualified from inheriting or receiving any benefit in terms of the will.
Certain notable exceptions, in terms of which a person may inherit despite their involvement in the execution of the will, are provided for. A court may declare a person, or his/her spouse to be competent to receive a benefit from a will if the court is satisfied that the person or his/her spouse did not defraud or unduly influence the testator in the execution of the will.
Undue influence
The expression of a testator’s last wishes must be the result of the exercise of his/her own volition. Any impairment to the free expression of the testator’s wishes at the time the will is made may result in a will being declared invalid.
The key question here is whether there has been a change of heart or whether the will contains the wishes of someone other than the testator.
The testator’s mental state, his/her ability to resist influence and the relationship between the people concerned are all factors to be taken into account. The mere existence of a relationship of a particular kind does not give rise to a presumption that the will of another has been substituted for the testator’s will.
Disqualified beneficiaries
Certain persons are disqualified from inheriting from an estate, even if they are the nominated heirs. For example, a person who signs the will as a witness. There are however exceptions to this rule if the court is satisfied that this person did not unduly influence the testator. Other persons that would be otherwise excluded from benefiting, would be persons who attributed in a criminal capacity towards the unlawful death of the deceased (this may be an obvious one).
Public Policy
In South Africa, testators are afforded the freedom of testation. Testators are, however, also limited by the notion that they should not create clauses in the will that would be considered to be contrary to public policy.
The process
Historically the courts have been strict in their interpretation of Section 2 (Formalities required in the execution of a will) of the Wills Act regarding the formalities for the validity of a will and there was not really any recourse allowing for any deviation from this interpretation.
However, the Law of Succession Amendment Act 43 of 1992 has moderated this historically accepted state of affairs by introducing provisions that a court (in certain circumstances) may recognise a will as valid even though it does not comply with all of the formalities.
Therefore despite the above listed ways to contest a will, in terms of Section 2(3) of the Wills Act, if a court is satisfied that a document or an amendment, drafted or executed by a person (who has since died), was intended to be that person’s will or an amendment thereto, the court shall order that the master accept that document as a will, in spite of the fact that it does not comply with the prescribed formalities.
So, it is safe to say that the interests of the testator are weighted heavily by our courts and their last wishes are always strongly protected (even if some presumptions are required to ensure its validity). Contesting a will or attempting to declare a will invalid will be difficult.
For more information on the validity of a will, read our article Is my will valid or invalid?
Why should you trust Benaters with contesting a will?
Whilst the above outlines some of the more common instances in which you can contest a will, it is an extremely delicate and very complicated process. As we said above, the courts usually protect the final wishes of the testator.
However, the above is not all encompassing. There are a lot of intricate details to take into account and this should be handled by a professional. We have however assisted many individuals and families in this delicate process and will be able to advise you accordingly.
If you feel that you have a valid claim to a will or a valid reason to contest a will, get in touch with Benaters who will be able to advise you accordingly (and responsibly).
We are here to help you in any way we can!