The General Principles for Challenging a Will

Clients approaching their attorneys with the challenge that a will is invalid is not uncommon. Such a challenge may arise from formal shortcomings or claims of foul play. This article will provide a framework of the possible reasons why a will may be challenged and a summary of the general principles.

The onus of proving that a will is invalid is on the person alleging invalidity to prove such an allegation. This was set out in the Kunzs v Swart and Others 1924 AD 618 case. The standard of proof is – proof on a balance of probabilities and as a rule, it is difficult to meet the required proof. Unless the testators’ wishes are recorded in written testamentary form, they come to nothing, and it is very difficult to dispute.

There are different reasons as to why interested parties may want to challenge a will. It may be because of the relationship they had with the deceased, where they claim that the deceased promised to leave them a particular item or sum of money. They may insist that the will as it stands could not conceivably have been the deceased wishes, it could be caused by their suspicions regarding the persons who are set to benefit, or it may stem from bitterness because of being disinherited, feeling that they were overlooked or that they were entitled to inherit.

In terms of South African law, no person has a right to inherit. A testator has the freedom to dispose of his/her estate as he/she wishes but this is not absolute and although a testator is permitted to disinherit his/her spouse and his or her children, there are instances where, based on public policy, the law restrains testators in the exercise of their testamentary freedom.

A will may be challenged, and the testator’s freedom of testation limited by a claim for maintenance and education of the testator’s minor children and just because that the child was disinherited does not deprive him or her of this claim. This also applies to any maintenance claim against the estate by the testator’s surviving spouse. In terms of the Maintenance of Surviving Spouses Act 27 of 1990, if a marriage is dissolved by death, the survivor will have a claim against the deceased spouse’s estate for the provision of his/her reasonable maintenance needs until death or remarriage, insofar as he/she is unable to provide for such needs himself or herself. These changes may be made against the estate of the testator despite the provisions of his/her will and therefore allow interested and affected parties to challenge a will on specific grounds.

Lack of mandatory formalities

Historically the courts have strictly interpreted s2 of the Wills Act 7 of 1953 (the Act) regarding the formalities for the validity of a will and they had no alternative provisions allowing for any variations. This would sometimes result in difficulties for the beneficiaries. The Law of Succession Amendment Act 43 of 1992 moderated this situation by introducing provisions that allow for the possibility that a court may recognise as valid a will that does not comply with all the formalities. In terms of s 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 died, was intended to be that person’s will or an amendment thereto, the court will order that the master accept that document as a will, in spite of the fact that it does not comply with the prescribed formalities. The court does not have a general discretion to condone non-compliance with the prescribed formalities. The wording of s 2(3) makes it clear that only if the specific requirements are met, and the court is satisfied that the document was intended to be the will of the testator, must the court then grant an order directing the master to accept the document as a will.

The Van Wetten and Another v Bosch and Others [2003] JOL 11581 (SCA) case is definitive on the interpretation of s2(3). In this case the issue on appeal was whether the deceased had intended a document that he had written to be his final will or simply instructions to his attorney to draft one. The court held that s 2(3) clearly states that a court must direct the master to accept the document as a will once certain requirements are satisfied. The court then held that, because the document had been created by the deceased personally and considering the surrounding circumstances, including the deceased’s conduct at the time of drafting the document, it was clear that the deceased intended it to be his will.

An electronic will, stored on a computer hard drive, which has not been printed or executed is invalid because as it is not in writing nor is it validly executed. It can, however, be saved by s2(3). In Van der Merwe v Master of the High Court and Another [2010] JOL 26090 (SCA) an appeal was brought to have an unsigned document accepted as the will of the deceased. The court noted that the lack of a signature had never, in terms of s 2(3), been held to be a complete bar to a document being declared a will. The court considered whether the document was drafted by the deceased and whether the deceased intended it to be his will. The appellant provided proof that the document had been sent to him by the deceased, giving the document an authentic quality. It was not contested that the document still existed and had not been amended or deleted; and from the title of the document the court held it to be clear that the deceased intended the document to be his will. The court declared that the will was valid.

Forgery

A will can be challenged on the basis that the document was forged or that, despite the will being genuine, the signature included, intended to be accepted as the testator’s signature, is forged. Where the authenticity of the will is in question or it is attacked on the basis that it is a forgery, evidence such as statements made by the testator, the testator’s instructions and statements of testamentary intention are also admissible.

The Pillay and Others v Nagan and Others 2001 (1) SA 410 (D) case involved a challenge to the validity of a will on the grounds of forgery. The plaintiff challenged the signature of the testator in the will, alleging that it was not the testator’s. The plaintiff bore the onus of proving that the will was invalid, which the court accepted had been successfully done. The plaintiffs argued that, because of the forgery involved, the first defendant should be disqualified from receiving any benefit from the estate. The court concluded that, through such forgery, the defendant had sought to deprive his siblings of their share of the estate and therefore was considered unworthy of inheriting.

In doing so the court showed that the persons to be disqualified from benefiting from a will may include those deemed unworthy for reasons other than that they contributed or caused the persons death or did some wrong to the deceased’s property. The recognised Roman-Dutch law provides that a person who unlawfully causes the death of a person cannot take a benefit under the person’s will or through intestate succession. Where a beneficiary is disqualified, no rights vest in the beneficiary and the bequest is accordingly not transmitted to the beneficiary’s heirs.

Evidence of handwriting experts where forgery has been alleged, can be admissible in court. In Molefi v Nhlapo and Others [2013] JOL 30227 (GSJ) the deceased had revoked her first will, in which the first defendant had been sole heir, and made a second will in which the plaintiff was appointed the sole heir. It was alleged by the defendant that the deceased had subsequently made another will naming him as sole heir. To support the contention that the will was a forgery the plaintiff adduced the evidence of a handwriting expert.

The handwriting expert’s opinion was that the signature on the contested will was forgery, and this was because of the differences he noted between the deceased’s signatures on the acknowledged will and the contested will. The expert’s evidence was left undisputed, and his conclusions were not contested in cross-examination. The court then concluded that the defendant’s version and the circumstances under which the disputed will was signed were so unlikely that the credibility had been challenged and the court accordingly rejected the first defendant’s evidence. The court held that considering the undisputed evidence of the handwriting expert, that the signature of the contested will was not the deceased’s and that the plaintiff had discharged the onus in proving the will was a forgery.

In terms of s 4A of the Act, any person who is a witness to a will, who signs on behalf of the testator, or who writes out the will or any part in his or her own handwriting, as well as the spouse of any person involved in such a capacity, is disqualified from inheriting or receiving any benefit in terms of the will. There are however exceptions to the rule where a person may inherit despite their involvement in the execution of the will. A court may declare a person, or his or her spouse­, to be competent to receive a benefit from a will if the court is satisfied that that person or his or her spouse did not defraud or unduly influence the testator in the execution of the will.

Testamentary capacity

Section 4 of the Act deals with testamentary capacity. In addition to the requirement that the testator must have reached the specified age, the testator must have sufficient mental capacity to understand the nature and effect of the testamentary act; understand and recollect the nature and situation of his or her property; and remember his or her relations and those whose interests are affected by the will. The question is whether, because of the disturbance or impairment, the person is mentally incapable of understanding the nature and effect of his/her act. In Thirion v Die Meester en Andere 2001 (4) SA 1078 (T) the court declared that the consumption of alcohol cannot invalidate juristic acts, such as drawing up a will.

Where a question of whether a person had the capacity to make a will arises, the mere fact of old age or illness does not necessarily mean that a person is incapable of appreciating the effect of the will he/she is executing, as stated in Essop v Mustapha and Essop NO and Others 1988 (4) SA 213 (D).

Undue influence

The expression of a testator’s last wishes must be the result of the exercise of his or her own volition. Any impairment to the free expression of the testator’s wishes at the time the will is made may result in a will being declared invalid. In Spies NO v Smith en Andere 1957 (1) SA 539 (A), it was pointed out that acts such as flattery, professions of extraordinary love or respect, meek tolerance of continual humiliation, direct requests or unusual affection do not necessarily constitute undue influence.

To have a will declared invalid based on this, certain principal factors must be considered and conduct similar to coercion or fraud is required. In the Spies case the court held that a last will may be declared invalid if the testator has been moved by coercion or fraud to make a bequest that he would not otherwise have made and which expresses another person’s will.

The key question is whether there has been a displacement of volition and thus whether the will contains the wishes of someone other than the testator. The testator’s mental state, his or her ability to resist prompting and instigation; and the relationship between the people concerned, are all factors to be considered. The mere existence of a relationship of a particular kind does not give rise to the presumption that the will of another has been substituted for the testator’s will.

Conclusion

While legislation implemented by the courts has brought relief for technical and other procedural failures, oral promises or intentions not recorded cannot be saved or given effect to. To challenge a will, which on the face of it appears to be valid, based on lack of testamentary capacity or undue influence, remains for the challenger an evidentiary burden.

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