“My father passed away recently and at the time of his death, he suffered from a brain tumor which impaired his cognitive and physical bodily functions. After his passing his estate was reported and a will submitted to the Master’s office, in terms the said will my late father bequeath his entire estate to an unknown third party. I want to dispute the validity of the will. What can I do?”
It is trite that a will, which is regular and complete on the face of it, is presumed to be valid until its invalidity has been established, the onus to proof is on the person alleging invalidity to prove such allegations. This test was set out in the matter of Kunzs v Swart and Others.
The standard of proof is the same as that which applies in all civil cases i.e. on the balance of probabilities.
In order to fully answer the question one must first establish, who can challenge the validity of a will.
Not everyone can contest a will, such a will can only contested by certain people who would be personally and financially affected by the will’s terms if it were to be accepted by the court as it is.
It has been held that the following persons may have the necessary locus standi to institute action to declare a will invalid:
- An heir-at-law for example is someone who is so closely related to the decedent that she would have received a share of the estate of the decedent had died without a will;
2) Direct descendants including his children or grandchildren;
3) Parents and more distant family only if such as siblings, would only inherit if the decedent was not married and left no living children or grandchildren;
4) Any person or entity named in an older will would have sufficient legal standing to contest a more recent will if he has subsequently been cut out of the recent will;
- An individual that was named as fiduciary or executor of the estate in the first will, but has been replaced in a subsequent will.
After one has established that you have the necessary locus standi to contents a will, it is important to the note that the validity of a will may be challenged on the following basis:
- Mental State, of the deceased person:
To be valid a will must have been done by someone who was of “sound mind” when the will was made. The legal term for the mental ability needed to execute a valid will is “testamentary capacity”. It is important to note that this is not a rigorous requirement and will forgetfulness or even the inability to recognise friends not necessarily by itself, establish incapacity.
The only requirements that a court will need to establish is:
- That the deceased was aware of what a will does and that he or she was making one;
- Knew who close family members were;
- Understood what he or she owned, and was able to decide how to distribute that property.
- Undue Influence:
A will can also be declared invalid if someone proves in court that it was procured by “undue influence”. This usually involves some evil-doer who occupies a position of trust, for example, a caregiver or adult child, manipulating a vulnerable person.
- Fraud or Forgery:
If the party can prove that the deceased did not sign the purported will.
- Improperly Executed Wills:
A will must have been dated and signed in the presence of at least two adult witnesses, who also signed the will. A witness cannot be people who are named as beneficiaries of the estate, nor appointed as the executor of the estate.
While legislation implemented by the courts has brought relief for technical and other procedural failures, oral promises or intensions not recorded cannot be saved or given effect to.
It is important to note that to challenge a will, which on face of it appears to be valid, based on lack of testamentary capacity or undue influence, remains for the one who allege the said bases to proof same.
It is advised that you approach an attorney who has full knowledge of these matters and provide the said attorney will medical report on which to rely when attempting to prove that the deceased was not mentally stable to draft the will.
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