Disputes over wills and estates can be deeply emotional and legally complex. If you believe a will is invalid, was signed under duress, or that you have been unfairly excluded, South African law gives you the right to challenge it. This guide explains the grounds to contest a will and how the process works.
Can You Contest a Will in South Africa?
Yes. Any person with a legal interest in an estate can challenge the validity of a will. This includes heirs named in the will, potential heirs excluded from the will, and creditors of the estate.
Grounds for Contesting a Will
1. The Will Was Not Properly Executed
The Wills Act 7 of 1953 sets out strict requirements for a valid will in South Africa:
- The testator must be at least 16 years old
- The will must be signed at the end of each page and at the bottom by the testator
- Two competent witnesses must sign in the testator’s presence
- Witnesses cannot be beneficiaries (or their spouses)
If any of these requirements were not met, the will may be declared invalid — though a court has discretion to accept a defective will if there is no doubt it reflects the testator’s intentions.
2. Lack of Testamentary Capacity
The testator (person who made the will) must have been of sound mind when the will was signed. If they were suffering from dementia, severe mental illness, or were heavily medicated to the point of not understanding what they were signing, the will can be challenged on grounds of incapacity.
3. Undue Influence or Duress
If someone pressured, manipulated, or coerced the testator into signing a will that does not reflect their true wishes, the will can be challenged on grounds of undue influence. This is common in situations where a caregiver or family member had significant control over a vulnerable testator.
4. Fraud or Forgery
If the testator’s signature was forged, or if the will was fraudulently altered after signing, it is invalid. Forensic handwriting experts are often used in these cases.
5. Revocation
A later valid will revokes all earlier wills. If a more recent will exists, the older one being probated may be challenged. Marriage also automatically revokes an earlier will, unless the will was made in contemplation of that marriage.
What About the Maintenance of Surviving Spouses Act?
Even if a will is valid, a surviving spouse who would be left without adequate maintenance can apply to court under the Maintenance of Surviving Spouses Act 27 of 1990. The court can order that reasonable maintenance be paid from the estate before distribution to other beneficiaries.
How to Contest a Will: The Court Process
- You must lodge your objection with the Master of the High Court in the relevant jurisdiction
- An attorney will bring an application to the High Court to have the will declared invalid
- Both sides present evidence — medical records, witness testimony, expert reports
- The court makes a final ruling on the will’s validity
Contesting a will is a serious legal undertaking and can take months or longer. Acting quickly is important — estate administration may have already begun.
Speak to an Estate Attorney Today
If you have concerns about the validity of a will, don’t delay. Contact Attorneys SA for expert advice on contesting wills and protecting your rights in deceased estate matters across South Africa.