“My father recently passed away and to the surprise of my brothers and I, my late father has left his entire estate to this second estranged wife. The reason for our surprise is that my father and his estranged wife did not have any communication for the past two years prior to his death and whilst living my father on a regular basis express his total disregard for my stepmother. My brother and I believe that the will in terms of which our stepmother now inherent our father’s fortune, might be forged. What can we do to prevent tour stepmother to succeed with this falsified will.

A will which is prima facie regular is presumed to valid, which entails that a will, complying with the regulations, accepted by the Master and signed by the deceased will be accepted as true and correct on face value.

Should any party then allege that a will is invalid and place the validity of such a will in dispute, it follows that the burden of proof rest upon that person challenging the validity of the will.

The validity of a will can be place in dispute on the following grounds:

1. Forgery of the will
2. Lack of mental capacity on the part of the testator
3. Undue influence or;
4. Failure to comply with the prescribed statutory formalities.

The interpretation of a will can further assessed and settled by the court but that will normally depend on legal arguments and as such matters of interpretation of a will can be dealt with by way of applications.

A will can also be rectified if it appears ex facie the document to be valid and can take place by addition or deletion of words to give effect to the true intention of the testator.

Disputes relating to aspects as set forth hereinabove in number 1 – 4 must however be adjudicated over by way of action due to the fact that evidence will have to be placed before a court.

Returning to the factual question above, if the client alleges that the will is a forgery, then he will have to produce evidence to support this allegation. This will entail that at the very least a handwriting expert is approach to establish if the signature of the decease is in fact that of the decease as depicted in the will. To enable a handwriting expert to properly assess whether the signature is in fact that of the decease, the client will have to produce various documents signed by the deceased prior to the death to have a effective report drafted.

The same applies when any one of the other grounds are proved for example when the mental capacity of the testator is disputed then the services of a doctor will be required to confirm same.

Caution must however be taken when litigation ensue regarding a will as many deceased estates have been litigated into insolvency because the heirs could not settle their disputes amicably.

General tips to consider before ligation:

1. In litigation concerning wills, special care should be taken to join all interested and potentially interested parties;
2. The Master of the High Court has an interest in the matter and must be joined to the proceedings even if no relief is sought against the Master;
3. A High Court must be approach as the matter relates to the status of a person.

Reference List:

• Amler’s Precedents of Pleadings, Ninth Edition, Harms, Lexis Nexis