The Legal And Emotional Journey Of Contesting A Will
When a loved one passes, the distribution of their estate should ideally reflect their final wishes, providing comfort to those left behind. Unfortunately, when questions arise regarding the validity of a will, a legal contest may be necessary to ensure that the deceased’s true intentions are honoured. Contesting a will is a serious legal endeavour that demands clear grounds, substantial evidence, and often court involvement.
Establishing the burden of proof
A will is presumed valid unless proven otherwise, and the burden rests on the party contesting the will to establish invalidity, as supported in Kunz v Swart and Others 1924 AD 618. Like other civil cases, the standard of proof is based on the balance of probabilities. Establishing such proof can be challenging, as testamentary wishes that are not recorded in a valid written format generally have no legal effect.
Motivations for contesting a will
Individuals may choose to contest a will for various reasons. Common motivations include a close relationship with the deceased, with expectations that certain assets or financial bequests would be left to them. Others may contest based on doubts about whether the current will truly reflect the deceased’s intent or due to perceived inequities or feelings of disinheritance. Such motivations often stem from personal or emotional grounds yet must be supported by legally recognised bases.
What are the legal grounds for contesting a will?
A will cannot be contested solely based on dissatisfaction with its contents; legally valid grounds are required. These grounds typically include:
- Failure to meet requisite formalities
According to section 2 of the Wills Act 7 of 1953, wills must adhere to specific formalities to be deemed valid. The strict requirements have also been moderated by the Law of Succession Amendment Act 43 of 1992, which allows courts to recognise documents intended to serve as wills even if they do not meet all prescribed formalities, as per section 2(3) of the Act.
- Testamentary Capacity
To make a valid will, the testator or testatrix must be mentally competent, fully understanding the nature of their estate and the effects of their decisions. A will signed by a mentally impaired individual may be challenged on this basis. In Thirion v Die Meester en Andere 2001 (4) SA 1078 (T), it was established that mere intoxication does not invalidate a will unless it impairs the testator’s judgement significantly.
- Undue Influence
If evidence shows that a third party exercised undue influence on the testator to the point of overriding their free will, a will may be contested. For example, in Katz and Another v Katz and Others [2004] 4 All SA 545 (C), the court required substantial proof to support allegations of undue influence. Factors like dependency on another person are not sufficient without supporting evidence.
- Fraud or Forgery
If a will is found to be forged or fraudulently obtained, it can be rendered invalid. In Pillay and Others v Nagan and Others 2001 (1) SA 410 (D), a will was successfully contested on the grounds of forgery, resulting in disqualification of the offending beneficiary.
The legal process of contesting a will
Once grounds are identified, the next step is to file a formal claim in the court within the jurisdiction where the will is administered. The process generally includes:
- Engaging legal counsel – Due to the complexities involved, consulting a legal practitioner skilled in the administration of deceased estates is essential. The attorney assesses the case’s merit, gathers relevant evidence, and provides procedural guidance.
- Serving the application – The contesting party must serve the application on all beneficiaries and the nominated executors named in the will, allowing them the opportunity to respond.
- Presenting evidence – Evidence such as medical records, witness testimony, and expert analysis (e.g., handwriting examination in cases of alleged forgery) is crucial in supporting the contest.
- Court hearing and judgement – During the hearing, both parties present their evidence. The court examines the validity of the will and issues a judgement based on the balance of probabilities. If the will is deemed invalid, the estate may either revert to a previous will or, in the absence of one, be distributed according to intestacy laws.
- Appeals process – If a party disagrees with the outcome, an appeal may be filed, focusing on procedural or legal errors rather than presenting new evidence.
- Alternative resolution: Mediation – Contesting a will can be emotionally and financially taxing. Mediation offers a constructive way to resolve disputes, often preserving family relationships and reducing legal costs. A successful mediation results in a signed settlement agreement, ending the dispute.
Considerations
When considering contesting a will, it’s important to weigh both the financial and emotional costs. The process can be lengthy and costly, often taking months or even years to resolve, with significant legal fees potentially impacting the estate and individual inheritances. Beyond the financial implications, contesting a will can also strain family relationships, as disputes over inheritance can lead to deep, lasting divisions among relatives. Before proceeding, potential contesters should reflect on the possible impact on family dynamics and the emotional toll the process may have on all involved, carefully balancing these factors against the likely outcomes.
Contesting a will is a significant and often sensitive legal matter that requires careful consideration. For those considering this path, consulting with an experienced attorney is invaluable, providing essential guidance to safeguard the deceased’s legacy and ensure their true intentions are honoured. Our team is here to assist not only with contesting wills but also with drafting a comprehensive, clear Last Will and Testament to prevent future disputes and protect your loved ones’ peace of mind. Contact our offices to learn more about how we can support you through every step of the process.
Blog by: Michelle Orsmond
Michelle Orsmond: michelleo@hammondpole.co.za