Are you considering challenging a will? Challenging a will is not an easy decision to make. If you have decided to challenge a loved one’s will, there are some points you that you need to consider. If you claim that a will is invalid, then you need to be able to prove the allegation.

Anyone who is over 16 years old can make a valid will, and they need to be in sound and sober mind at the time. Your will must be signed by two witnesses who are over 14 years old, and they need to be able to testify in court if needed. Both witnesses should be in the presence of the testator (the drafter of the will) as well as each other when they sign.

What are the grounds to challenge a will?

Failing to comply with the formalities:

Section 2 of the Wills Act 7 of 1953 (“the Act”) does determine the formalities for a valid will. 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 passed away, was intended to be that person’s will or an amendment thereto, the court then orders the Master of the High Court to accept that document as his will, even though it doesn’t comply with the prescribed formalities.

Forgery:

You can challenge a will on the ground that it was forged. The will appears genuine and complies with all the formalities, however the testator’s signature is forged.

When you are disqualified to inherit or benefit from a person’s will, you can challenge a will. One example is when someone deprives his siblings of their share according to the estate. In such a case, his will can be challenged.

Misrepresentation:

Did you know that a will can be challenged in its content if certain clauses have been proven to be false in its devolvement? The court has to look in detail to determine whether the document shows another party’s wishes instead of the testator’s wishes. The court has to take factors into consideration – these include questions as to the nature of the relationship between the testator and the beneficiaries involved.

As you can see, challenging a will is not so straightforward. Make sure to have a valid will that no one can challenge, and save your family the heartbreak that comes with challenging a will.

As a Trust Specialist, I have many years of expertise in drafting valid wills. I can assist you in creating your valid will, and hopefully I can help you to avoid the issue of anyone challenging your will later on. Please get in touch today to schedule a consultation with me. I look forward to answering any questions you have about your will.

DR MERVIN MESSIAS
JD (Juris Doctor) / BA, LLB (Wits) / TEP (Trust & Estate Practitioner)

Book an appointment with my Executive Assistant, Jutleth Mkhonza. Email julie@mmtrustspecialist.co.za or call +27 (0) 11 783 0108.