Freedom of testation is the core principle when determining whether a will is valid and whether it can be contested or not, as South African law underpins the testator’s rights to decide how they wish for their estate to be divided and administered. However, it is common for surviving relatives to express a desire to contest a will either because they believe it is invalid or there may have been elements of foul play. Contesting a will should be done within a reasonable timeframe to avoid prescription and should generally take place before the estate has been wound up.

Freedom Of Testation And The Right To Inherit

Often surviving relatives opt to contest the will because they have been excluded from benefiting from the deceased’s estate or may even have an issue with the requests of the testator regarding their burial or cremation. It is important to note that South African law has no right to inherit despite many surviving spouses, children, siblings, etc., feeling entitled to it. Whilst the deceased person/testator has the freedom of testation, this can be limited by a claim made. The onus is on the person(s) contesting the will and can accordingly only be made by interested and affected parties on application to the Court.

Grounds To Challenge A Will

The interested and affected party may apply on one of the following grounds: lack of requisite formalities, forgery and undue influence, testamentary capacity, and public policy. The first ground is testamentary capacity. This means the testator must have been of sound mind and understood the will’s contents and had proper intention to dispose of their estate to the beneficiaries of their choice. Secondly, the will can be challenged if the document does not comply with the requisite formalities for a valid will. These formalities include the necessary signatures of the parties and two witnesses to attest to the signature of the testator. Finally, notwithstanding the requisite formalities, the courts have the discretion to condone non-compliance with the formalities and often apply a strict approach to whether the testator intended that document to be his last will and testament.

The third possible ground to contest the will is a forgery and undue influence. Should an interested party make an application on this ground, they will have to prove that the testator’s signature was forged, that the testator was under duress or that the testator was misled about the documents they were signing. Finally, the fourth ground of public policy refers to the principle of freedom of testation. Whilst testators are entitled to dispose of their assets as they will, this is limited to the extent that they cannot dispose of their assets or create a clause in the will that will be considered contrary to public policy.

So, what happens if you are not happy with the testator’s burial, cremation or funeral arrangements? Contrary to what many surviving relatives believe, it is not advisable to contest a will based on forcing a burial or cremation when the deceased has clearly expressed their desire to be cremated or buried. To do so would be a costly and lengthy exercise, with the outcome not guaranteed as it does not fall within the grounds to contest, and a strong argument will need to be made to contest the validity thereof.

Conclusion

There have been many challenges along the way, and wills are often contested, causing family feuds and long-drawn-out court battles, resulting in a delay in closure for those closest to the deceased. Drawing up a valid will with the assistance of a legal advisor is imperative; however, that does not always mean that there will be no contests that arise once you have passed. Having honest discussions with those who would ordinarily inherit under intestate succession is vital to try and avoid these disputes. Although it is advisable to honour the testator’s wishes, there are remedies available should you strongly believe that the will should be contested. Should you or someone you know need assistance with any of your legal needs, contact our team at SchoemanLaw today.

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