Is my will valid or invalid?
11 May 2021
I recall having freedom of testation – How can my will be contested?
Before getting into the ways in which a will can be contested, we thought it would be a good idea to go over some basics. Keeping in mind that Your Will is Yours to Make.
Firstly, what is a will? A will expresses your final wishes. It is a formal, signed, written document, in which the testator voluntarily sets out his/her instructions in unambiguous terms as to how his/her assets are to be “passed down” or inherited.
Secondly, what can be contained in a will? A will allows a testator to dispose of the whole or any part of his/her estate as he/she pleases. As long as it is not illegal, impractical or against public policy, a testator can leave anything to anyone, provided the will is valid. It is important to note that a testator has freedom of testation.
Thirdly, what is freedom of testation? The freedom of a testator to dispose of the whole or any part of his/her estate as he/she pleases is not absolute and there are several instances under which a will may be invalid in whole or in part. Testators and drafters of the will should bear these in mind when a will is executed or if the circumstances of the testator subsequently change.
How do we ensure that our will is valid?
We have already offered some important Do’s and Don’ts of a will, covering the legal and practical principles that must be kept in mind. But we have listed below some basic principles when drafting a will.
- The will must be signed (at the end) by the testator or by another person in his/her presence and by his/her direction;
- The signature must be made by the testator or by the other person who signs in his/her presence and by his/her direction, or must be acknowledged by the testator and such other person in the presence of two or more competent witnesses present at the same time;
- The witnesses must attest and sign the will in the presence of the testator, each other and, when applicable, the person who signed the will in the testator’s presence and by his/her direction;
- If the will consists of more than one page, each page (other than the page on which it ends) must also be signed by the testator or by the person who signed on behalf of the testator anywhere on the page; and
- If a will is signed by the testator by the making of a mark or by some other person in the presence and by the direction of the testator, a commissioner of oaths has to certify that he/she has satisfied him/herself as to the identity of the testator and that the will so signed is the will of the testator, and each page of the will, excluding the page on which his/her certificate appears, has to be signed anywhere on the page by the commissioner.
So, reducing to written form and signing the pages is crucial. Got it. What else?
While the following points do not necessarily affect the validity of a will, they are important and practical points to keep in mind –
- Wills cannot contain any illegal, unethical or immoral provisions;
- Wills should be dated to avoid confusion in case another will is found;
- Witnesses cannot benefit under the will;
- Witnesses cannot be nominated as an executor, administrator, trustee or guardian – if they are, the nomination will be void;
- Witnesses should sign/initial every page;
- Wills should be clear and readable (whether printed or handwritten);
- Signatures should be as close to the last line of every page; and
- Pages should be numbered.
So my will is clear, it is not immoral or illegal, it has been witnessed and it has been signed. So I should be ok?
Well, yes. But there are other ways in which your will may be declared invalid….
Considering that your will, which is valid on the face of it, is presumed to be so until its invalidity has been established, the onus is on the person alleging invalidity to prove that it is invalid, which is done on a balance of probabilities (the same burden that applies in all civil cases).
Generally, it is quite difficult to meet the proof on the balance of probabilities, especially when the testator’s wishes are recorded in written form. It becomes very difficult for an interested party to dispute.
But it does happen…..
There are various reasons why interested parties would want to challenge a seemingly valid will. It could be due to a relationship that the party had with the deceased, claiming that the deceased promised to leave him/her a particular item or a particular amount of money. Or it may stem from bitterness because of being disinherited from the will.
But it must be remembered that no person (under South African law), has the inherent right to inherit. However, the freedom of a testator and the freedom of testation is not absolute and although a testator is permitted to disinherit his/her spouse or his/her children, there are instances where, based on public policy, the law restrains testators in the exercise of their testamentary freedom.
Below are some of the more common ways in which a will is challenged (and the testator’s freedom limited)
A claim for maintenance of a surviving spouse and the testator’s minor children
The fact that a child was disinherited does not deprive him/her of this claim against the deceased estate. The duty of a parent to support his/her child does not terminate upon the parent’s death. Therefore, a child can lodge a claim against the estate and such support endures until the child is self-supporting. This includes both minor children and children over the age of 18. However, a child over the age of 18 who wishes to lodge a claim against the deceased estate will need to be provide proof that he/she is unable to support himself/herself. It is important to note that a child’s maintenance claim ranks above all other claims against the estate including those of heirs and legatees, except for debts owed to creditors of the estate. A minor child’s claim is lodged by the legal guardian on behalf of the minor child, while a child over 18 years of age can lodge his/her own claim.
Similarly, in terms of the Maintenance of Surviving Spouses Act 27 of 1990, if a marriage is dissolved by death, the surviving spouse 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/herself.
These changes may be made against the estate of the testator despite the provisions of his/her will and accordingly allow interested and affected parties to challenge a will on the specific grounds as set out above.
A will can be challenged on the ground that the document was forged or that despite the will being genuine, the signature intended to be accepted as the testator’s signature, was 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 will need to be provided.
In terms of Section 4A of the Wills Act 7 of 1953, 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.
Certain notable exceptions, in terms of which a person may inherit despite his/her involvement in the execution of the will, are provided for. A court may declare a person or his/her spouse to be competent to receive a benefit from a will if the court is satisfied that the person or his/her spouse did not defraud or unduly influence the testator in the execution of the will.
Section 4 of the Wills Act governs 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 the nature and situation of his/her property; and
- Remember his/her relations and those whose interests are affected by the will.
The question now is whether, as a consequence of a mental disturbance or impairment, the testator is mentally incapable of understanding the nature and effect of his/her act. For example, the consumption of alcohol cannot in itself invalidate juristic acts (see Thirion v Die Meester en Andere 2001 (4) SA 1078 (T)).
As a general test for testamentary capacity, the test found in Banks v Goodfellow 1870 LR 5 QB, remains the law:
‘The testator must … be possessed of sound and disposing mind and memory… But his memory may be very imperfect… and yet his understanding may be sufficiently sound for many of the ordinary transactions… were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?’
The expression of a testator’s last wishes must be the result of the exercise of his/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.
The key question is whether there has been a change of heart or whether the will contains the wishes of someone other than the testator.
The testator’s mental state, his/her ability to resist influence 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 a presumption that the will of another has been substituted for the testator’s will.
Keep in mind!
Historically the courts have been strict in their interpretation of Section 2 of the Wills Act regarding the formalities for the validity of a will and there was not really any recourse allowing for any deviation from this interpretation.
However, the Law of Succession Amendment Act 43 of 1992 has moderated this historically accepted state of affairs by introducing provisions that a court (in certain circumstances) may recognise a will as valid even though it does not comply with all of the formalities.
In terms of Section 2(3) of the Wills Act, if a court is satisfied that a document or an amendment, drafted or executed by a person was intended to be that person’s will or an amendment thereto, the court shall order that the master accept that document as a will, in spite of the fact that it does not comply with the prescribed formalities.
So, it is safe to say that the interests of the testator are weighted heavily by our courts and his/her last wishes are always strongly protected. Contesting a will or attempting to declare a will invalid is difficult.
However, if you feel that you have a valid claim to a will or a valid reason to contest a will, get in touch with Benaters who will be able to advise you accordingly (and responsibly).
Article sources from Benaters.
See also:(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)