My dad married again and his children with his other wife inherited, but not us. On what grounds can we challenge his will?
In order to make a valid will, the testator must have the necessary testamentary capacity. A will is presumed to be valid until its invalidity has been established and the onus is on the person alleging the invalidity, to prove the allegation.
No person in terms of the South African law has the right to inherit. However the freedom of a testator to dispose his estate as he wishes is not absolute, since the law can restrain testators in their exercise of their testamentary freedom.
Grounds to challenge a will:
Failure to comply with the formalities:
Section 2 of the Wills Act 7 of 1953 (“the Act”) determines the formalities for a valid will. However in terms of section 2(3) of the 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 the Master of the High Court to accept that document as his will, despite it not complying with the prescribed formalities.
Therefore courts have a general discretion to condone non-compliance with the prescribed formalities. In most case law courts use a strict application/approach of section 2(3) of the Act and always considers the surrounding circumstances to determine whether the testator intended the document to be his will.
A will can be challenged on the ground that it was forged. In other words the will looks genuine and complies with all the formalities, but the testator’s signature is forged. In this instance evidence such as statements made by the testator, the testator’s instructions and statements of testamentary intention are admissible. In Molefi v Nhlapo and Others the court allowed evidence of a handwriting expert and his evidence helped to determine that the will was a forgery.
Another instance when a will can be challenged on the ground of forgery, would be when a person is disqualified to inherit or benefit from the will. Examples include:
- A person depriving his siblings of their share according to the estate;
- A person contributed or caused the death of the testator and;
- A person and his spouse, who is a witness to a will, signs on behalf of the testator or who writes out the will in his handwriting. However section 4A(2) of the Act states that where a court is satisfied that the person or his spouse did not defraud or unduly influence the testator in the making of his will, they would be able to receive a benefit in terms of the will.
Section 4 of the Act states that any person who is sixteen years and older, and has the mental capacity to understand what he is doing, can execute a will. The problematic requirement is whether the testator had sufficient mental capacity to understand and appreciate his testamentary act. In Thirion v Die Meester the court held that the consumption of alcohol is not a sufficient ground to invalidate the will. In Essop v Mustapha and Essop NNO and Others the court held that the decisive moment for establishing the competence of a testator is the time when the will was made and not when instructions were given to draft a will.
Every testator has testamentary freedom and discretion to divide his estate as he wishes. In the case where a testator’s testamentary freedom and discretion was infringed or impaired, his will is declared invalid. Courts have to take into consideration certain principle circumstances, like the testator’s mental capacity; the testator’s ability to resist influence; the relationship between the testator and the person responsible for the alleged influence and; the period between the drafting of the will and the death of the testator. Conduct similar to duress or fraud is also required. Therefore the key element to contest a will on the ground of undue influence is displacement of volition. However if after the execution of a will a period of time has lapsed, during which the testator could have changed his will and he did not, it may be concluded that his will was not made against his wishes.
If in doubt whether you can contest a wil, contact your legal advisor for clarification.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)