A Will is designed to capture the wishes of the deceased with regards to how they prefer their estate to devolve to the nominated heirs. Such Will contains instructions as to how assets must be distributed to the heirs under that estate and in some instances, who must preside over such process (Executor).
The Wills Act 7 of 1953 prescribes requirements that must be fulfilled in order for a Will be taken as valid. Non-compliance may render the Will to be declared invalid and without effect. In such case the estate will devolve according to the rules governing intestate succession as per the Intestate Succession Act 81 of 1987.
Despite the Court having discretion on the validity of a Will where there are disputes, emphasis is placed on the need to give effect to the wishes of the Testator. Such approach is premised on the Courts’ preference not to interfere with testamentary freedom.
As a benefit of context, some of the requirements that must be fulfilled in order for a Will to be declared as valid are that;
If a mark has been put as opposed to a signature, a Commissioner of Oaths must be present to certify the identity of the Testator and that the Will is indeed of the Testator.
The above are some of the formal requirements for the validity of a Will and with that being said, in the event that a party wishes to challenge the validity of a Will on one or more grounds, such party bears the onus to prove such an allegation, as was held in the case of Kunzs v Swart and Others 1924 AD 618.
Challenging the validity of a Will may be done on the grounds of failure to comply with formal requirements, fraud, and forgery, or that it could not conceivably be the wishes of the Testator. The latter ground requires that coercion or undue influence be proven to prove that the Testator on a balance of probabilities could not have meant such to be his wishes.
The Courts have a discretion to condone a Will that otherwise does not comply with the formal requirements as set out in Section 2 of the Act. However, this discretion is not exercised widely, and it still remains very much important that parties seek professional assistance to conclude their Wills.
Where fraud and/or forgery is alleged, subsequently putting the authenticity of the Will in question, the Court is prepared to hear such as a ground for application to have a Will declared as invalid. In the case of Pillay and others v Nagan and others 2001 (1) SA 410 (D) the applicants successfully challenged the validity of a Will on the basis that the signature was forged, whereby the Defendant had attempted to disinherit other family members.
Undue influence is an acceptable ground to invalidate a Will that otherwise complied with formal requirements. The essence behind a Will is that it must capture the wishes of the Testator and therefore where it is proven that the Testator was under undue influence at a material time when the Will was executed, an application for the declaration of invalidity will likely be successful in that instance. The cases of Spies NO v Smith en Andere 1957 (1) SA 539 (A) and Katz and Another v Katz and Others (2004) 4 All SA 545 the Courts confirmed what undue influence is and is not.
Lastly, testamentary capacity is also another acceptable ground to invalidate a will. As was alluded to above, a person must not only be 16 years of age or above to execute a Will, but such person must also have capacity to appreciate the consequences of their actions. It follows therefore that a person with mental incapacity may likely not appreciate the consequences of their actions and therefore will lack testamentary capacity. The courts however may exercise discretion on this on a case-by-case basis.
We assist parties with drafting a Will, storage, challenging validity of Wills and the administration of estates. Our astute and experienced attorneys stand ready to assist you comprehensively. Contact us for a consultation.
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