Background
In approaching the legal question of how one contests the validity of a will it is important to note that under South African law, no person has an inherent right to inherit (which should not be confused with the rules of the laws of succession in South Africa). South African law rather focuses on the freedom of testation, in other words, the law is oriented towards protecting a person’s right to decide how he or she wishes his or her estate to be divided and administered. The law also provides that a will, which at face value seems complete and regular, will be seen as valid and as such the burden of proof, as is usually the case in civil matters, is one based on a balance of probabilities, and this burden to prove on a balance of probabilities that the will is not valid rests on the one alleging that the will is not valid. It is due to this burden of proof that to successfully contest a will is a difficult process that does not often succeed.1
Grounds upon which the validity of a will may be challenged
There are four general grounds upon which an accusation of invalidity may be based. These four grounds are:
- A lack of the requisite formalities;
- Forgery;
- Testamentary capacity;
- Undue influence
The above is not a closed list and there are some other grounds upon which to base a claim that any particular will is not valid, but these grounds involve aspects more related to disqualified beneficiaries and provisions in the will that are contrary to public policy.
A lack of the requisite formalities
The Wills Act 7 of 1953 has in the past caused some confusion due to its requirement that strict adherence to the formalities be observed. The Law of Succession Amendment Act has however eased this burden to some extent. Where a person intends for a document to be his or her will, the court will order the Master of the High Court to accept the document, provided some core formalities are met. It is important to note that the courts do not have a general discretion to condone and make allowances for non-compliance with prescribed formalities that need to be observed.
Section 2(3) of the Act2 has caused further confusion in regards to the requirement that the will or document had to have been drafted by the testator. On one hand we have a generous interpretation of “drafting” whilst others favored a more literal interpretation, essentially arguing that the document had to have been drafted by the testator and not by a 3rd party, such as an attorney.
In the case of Bekker v Naude3 the court finally settled the matter and concluded that the literal or “strict” interpretation to be the correct one. In other words the testator must have drafted the document himself. This reasoning was founded on the legal principal of interpretation whereby the ordinary meaning of a word must be given to a term unless otherwise indicated by the legislature or where giving such an ordinary meaning would lead to inconsistency or absurdity.
Forgery
Forgery can be a ground upon which the validity of a will can be challenged. This occurs not only where the document purported to the will of the testator has been forged but also where a will, which on the face of it appears valid, bears a forged signature of the testator.
The forgery of a signature of a will can have the effect that the guilty party be excluded from the inheritance4, having the effect that not only those who played a part in the death of the testator can be excluded, but also those who seek to defraud the other beneficiaries of the will.5
In terms of Section 4A of the Act, persons who sign as a witness on the will or who have, in any manner , in their own hand, drafted part of the will, will be excluded from inheriting from the will, and the spouse of a person so disqualified will also be rendered incapable of being a beneficiary.6
Testamentary capacity
Section 4 of the Act provides for the general requirements a testator must meet in order to be seen as having “testamentary capacity”. These factors involve the age of the testator, sufficient mental capacity to understand the nature and consequences of the act and recollect his relations and those affected by the will.
The important moment in time to consider here is that moment the testor created and signed his will, not necessarily when instructions were given for the will to be drawn up. In order to determine if a person possessed the necessary capacity the test employed is the one used in Banks v Goodfellow7 which reads as follows:
“The testator must be possessed of sound and disposing mind and memory. But his memory may be very imperfect and yet his understanding maybe 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.”
Thus even if a person has diminished or impaired intelligence, provided that he or she has sufficient mental fortitude to understand and appreciate the testamentary act, he will be seen as possessing capacity.
Undue influence
The provisions, terms and wishes of the testator, as contained in his or her will, must be as a result of the exercise of his or her own volition. Should a will be a result of compulsion or where the free expression of the testator is somehow impaired, the will can be rendered invalid.
Certain acts, such as extraordinary love, tolerance of continual humiliation, direct requests and unusual affection does not necessarily constitute undue influence.8 In order to establish undue influence, the acts involved should be akin to fraud or coercion, in other words, need to be of a serious nature. In evaluating the actions that might have led to undue influence, the court will test to see if there has been a displacement of the volition of the testator, to such an extent that the will no longer reflects the wishes of the testator, or alternatively contains the wishes of a person other than the testator.
The courts will take into account a number of factors in order to establish the possibility of undue influence, such as the mental state of the testator at the time of the signing of the will, the relationship between the testator and those persons concerned and surrounding factors.
In the matter of Katz v Katz9 the courts had to evaluate a claim wherein it was alleged that the second wife of the testator unduly influenced him to create a new will. The court stated that all such allegations had to be accompanied by evidence, as mere speculation and suspicion that was unfounded is insufficient. The court also pointed out where a period of time passes after the will was executed wherein the testator could have altered a will, but he fails to do so, it can be inferred that it was not made against the will of the testator.
– Johan Barkhuizen
1 Kunzs v Swart and Others 1924 AD 618
2 Wills Act 7 of 1953
3 Bekker v Naude en Andere 2003 (5) SA 173 (SCA)
4 Pillay and Others v Nagan and Others 2001 (1) SA 410 (D)
5 Roman-Dutch Law Maxim : De bloedige hand neemt geen erf
6 Blom and Another v Brown and Others [2011] 3 All SA 223 (SCA)
7 Banks v Goodfellow 1870 LR 5 QB
8 Spies NO v Smith en Andere 1957 (1) SA 539 (A)
9 Katz and Another v Katz and Others [2004] 4 ALL SA 545 (C)