04 Sep The Legal Process of Contesting a Will

Do you need to contest a will in South Africa, but have no idea where to start and about the legalities involved? No worries! Credit Boost has put together a handy guide explaining the legal process, from collecting evidence to finding an attorney. To contest a will, you’ll need to establish grounds, collect and present evidence, prepare and file the contest, and maybe undergo a trial.

A will is a legal document that outlines a deceased person’s wishes for the distribution of their assets, wishes for the care of minors, and distribution of any other assets of value. If you can prove the testator (person who wrote the will) wrote the will under duress, did not have capacity to write the will, did not comply with the relevant formalities, or that the will was written with fraudulent means, you can most likely contest the will and win.

Read on and discover the legalities involved with contesting a will, how to obtain evidence, and potential challenges and outcomes you may face.

Will Contesting Grounds

Before you contest a will, you have to get your facts straight. You might challenge the will on the grounds of testamentary capacity, will execution, or content issues.

Lack of Mental Capacity

The deceased may not have been of sound mind or capable of understanding their actions’ nature when writing the will. This could have been because of Alzheimer’s disease or any other intellectual hindrance.

Undue Influence

Someone may have exerted undue pressure on the testator or coerced them to create a will that is non-reflective of their true wishes during estate planning.

Non-Compliance with Formalities

The will may not have been executed per the prescribed legislative limits, like being signed by the testator in the presence of valid witnesses.

Forged Will

The will may have been forged or fabricated without the testator’s consent. It may also be fraudulent, obtained through fraudulent means, or deceitful.

Unjust or Unreasonable Provisions

While there’s no specific legal standard for “fairness” in a will, extreme or unusual provisions might be challenged if they can be shown to be the result of undue influence or other improper factors.

Will Contesting Legalities

To contest a will, you should first obtain a copy of it. You’ll need to do this with the assistance of the Master of the High Court. Then, consult a qualified attorney in wills and estates, who can assess the validity of your grounds. After that, prepare and file the contest using a formal document contesting the will. Your attorney will help you with this.

The opposing party will have an opportunity to respond to the contest. Both sides will have the opportunity for a discovery process and to contest the proceedings when preparing for trial. If the matter can’t be resolved through negotiation or a settlement, a trial will be conducted before a judge. The judge will hear evidence from both sides and make a decision on the validity of the will.

Contesting and Its Outcomes

If the court finds the will valid, the original terms will remain in effect. Conversely, if it is found to be invalid, the deceased’s estate will be distributed according to intestate succession rules. Note that in some cases, the court will only invalidate some parts of the will, leaving the remaining parts intact.

Note that there are strict time limits for contesting a will. Failure to stay within the limits of this timeline can result in an inability to contest the will.

If you need assistance contesting a will, contact Credit Boost. Work with South Africa’s best wills and estates attorney today!