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Nedgroup Life
Old Mutual
Allan Gray
Fairbairn Capital
Liberty Group

When a Will is Contested

To quote an oft repeated logic: everyone should have a Will. Once you start working and earning money, have investments and own material possessions – even long before you marry and have children – you should have a Will. But the story doesn’t necessarily end there if there are challenges to your final wishes – usually from family, and most usually from siblings. So, another oft repeated logic: be careful what you wish for.

Wills are important documents because they facilitate the actions that must be taken when somebody passes away. Firstly, upon the passing of a loved one, you have to know where to locate the final written Will and arrange for the administration of the estate so that the deceased’s wishes can be implemented.

The circumstances of contestation

Any contestation of a Will can be expensive and time consuming. Because a Will is being contested, does not mean that the document becomes invalid. Under probate law, Wills can only be contested by spouses, children or people who are mentioned in the Will or have been mentioned in a previous Will. When one of these people notifies the court they suspect a problem, a Will contest begins.

Although it may be rare to find family members disagreeing with the contents of a Will, or experiencing one member being excluded for some obscure reason, there are occasions where family members do not agree with what has been written in a Will. This might be because the family considers the Will to be out of sync with what the person would have wanted at the time of their death. It may also be because a particular member of the family believes they have been treated unfairly in the Will, regardless of what the rest of the family may think.

However, a person cannot contest a Will just because he or she feels left out, or that the Will seems unfair, or because the deceased had promised something different to what is now read in the Will. A last Will and Testament can only be contested during the probate process when there is a valid legal question about the document or process under which it was created.

Grounds for contestation

How the Will is signed and witnessed.

The Will must be signed by the initiator of the document, and this must be witnessed by two people who are also required to sign that they are present and witnessing the procedure.


This occurs if a Will is found to be fraudulently signed by someone other than the decedent.

Lack of Due Execution.

The procedures prescribed by the law have not been followed by the decedent when preparing their Will.

Mental capacity at time of signing.

One of the most commonly argued reasons for a contest is that the person signing the Will did not have full mental capacity at the time. The person writing the Will must be able to understand his assets, who his heirs are, and that he or she understands the effects of the Will. The decedent needs to be competent enough to execute an estate plan, and fully mentally capable of understanding this.

Elder Abuse.

This relates to the situation where a person may have suffered financial, physical or psychological abuse – and this has played a role in how they have signed their Will.


This occurs when the person signing the Will is given an alternative document to that which they believed to be correct – and they sign a fraudulent document instead.

Under influence (pressure) of another party.

A will is also invalid if the testator was unduly influenced at the time of signing. An elderly person can be confused and manipulated into signing just about any document put in front of them, and not understanding what they are signing. Excessive persuasion can also be used to compel the decedent to make drastic changes to their estate plan.

The process of contestation

Not everyone has the right to contest a Will. You will only be able to start this legal process if you can prove a certain type of relationship with the person who has died. Either a genuine family member, or so close that you were considered a member of the family, or you were co-habiting with the deceased, or if you have been mentioned in a current or previous Will.

A dispute about a Will can often lead to a long, drawn out court process. This is likely to be stressful and expensive and should only be considered as a last resort. The right way forward will then depend on the circumstances; if there is consensus among family members that the Will should be deemed invalid, then a solicitor will be able to put a case together to take to court.

If the court agrees that a Will or codicil is invalid, then are several possibilities:

• The entire Will or codicil can be thrown out – and if an earlier Will exists then this could be put into place instead.
• If there is no other Will, assets could be distributed by the court.
• Part of the Will or codicil could be upheld, leaving the court to interpret how the rest of the estate should be distributed.

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