How Do You Contest a Will or Deceased Estate in South Africa?

When someone passes away, what happens to their belongings, money, and property can lead to disputes. This is especially true if family members or heirs feel the will is unfair, invalid, or was influenced improperly. South African law provides clear ways to challenge (contest) a will or the administration of a deceased estate, but the rules are strict to protect the true wishes of the deceased.

When Can You Contest a Will?

You cannot challenge a will simply because you don’t like its contents. South African law allows you to contest a will only under specific circumstances, including:

• Lack of Mental Capacity: If the deceased (the testator) wasn’t of sound mind when signing the will.
• Undue Influence/Coercion: If someone pressured or manipulated the deceased into changing their will.
• Fraud or Forgery: If you suspect the will is fake, includes forged signatures, or was signed under false pretences.
• Failure to Follow Formalities: The will must be in writing, signed by the testator, and signed in front of two competent witnesses. If these rules weren’t followed, it’s invalid.

Who Can Contest?

• Heirs or Beneficiaries: Those named in the will or those who would inherit if there was no will (for example, close family members).
• Interested Parties: People who believe they should have inherited, creditors, or anyone with a direct interest in the estate.

Step-by-Step: How Do You Contest a Will or Estate?

1. Lodge an Objection with the Master of the High Court

• File a written objection explaining why you believe the will or the estate administration is invalid. Attach any evidence you have (medical records, correspondence, proof of undue influence, etc.).

2. Place a Caveat (Hold) on the Estate

• This legal notice tells the Master and executor not to distribute assets until the dispute is settled. It prevents heirs from getting their share before your concern is addressed.

3. Await Review and a Possible Court Referral

• The Master of the High Court reviews your objection. If the matter isn’t resolved, it can be referred to the High Court for a judge to decide.

4. Go to Court (if needed)

• In court, both sides will present their evidence. If the court agrees the will is invalid, an earlier will may be used, or—if none exists—the estate is divided according to the Intestate Succession Act.

What If There’s No Valid Will?

If the will is thrown out or there was never a valid will, the estate is distributed using a fixed formula set by the Intestate Succession Act 81 of 1987. This law automatically prioritises spouses, children, and close family. In a landmark case, the Constitutional Court ruled that old rules excluding some heirs (like women and children under male-only inheritance) were outdated and unconstitutional.

Example Scenario

Imagine your father passes away, and a new will (signed shortly before his death) leaves everything to his new partner, excluding his children. If you believe he wasn’t of sound mind, or was pressured to sign, you can lodge an objection with the Master of the High Court. This can halt the estate’s distribution and may lead to a court hearing. If the court finds the will was invalid, inheritance will either follow a previous will or default to the intestate succession law, ensuring children and spouses are still protected.

In Summary

• Only certain grounds—like mental incapacity, undue influence, and legal technicalities—allow you to contest a will or estate.
• The process starts by lodging an objection with the Master of the High Court.
• The estate’s distribution can be paused until the dispute is resolved.
• If successful, either an earlier will applies, or default inheritance rules are followed.
• Early legal advice is vital to protect your interests.

Need advice?

Let’s chat about your options.

www.bregmans.co.za |☎️011 646 0335 | ✉️info@bregmans.co.za 

Can a Joint Bank Account Be Frozen After Death in South Africa?

 

Here is a straightforward, layman’s explanation of what happens to a joint bank account after one holder dies in South Africa:

Account Gets Frozen After Death
If one of the people on a joint bank account in South Africa dies, the bank will freeze the entire account as soon as they are notified (usually after seeing the death certificate). This means nobody (including the surviving account holder) can draw money or make payments from this account.

Why is the Account Frozen?
South African law does not treat joint accounts in the same way as some other countries. The money in a joint account is not automatically passed on to the survivor. The deceased’s portion becomes part of their estate, which must be sorted out and managed by a court-appointed executor.

No Access Until Estate Is Processed
All direct debits and transactions from the joint account stop. The surviving partner or spouse will need to open a new bank account in their own name. The money in the frozen account will only be released to the survivor once the executor finishes their work, which can take some time.

What Should You Do?
It’s wise to set up separate bank accounts, emergency funds, or life insurance, so that loved ones are not left without access to money immediately after a death. This is especially important to cover day-to-day living and funeral costs.

In Summary:
In South Africa, if you have a joint bank account and your co-account holder dies, the bank will freeze the whole account. You will not be able to get any of the money until the estate is sorted out. Plan ahead so you (and your family) have another way to pay for urgent needs during this time.

The account typically stays frozen for several weeks to a few months, depending on how quickly paperwork is sorted and the court-appointed executor is able to act. Delays are common, so it is wise to plan for this by having other funds available for immediate needs

If you need more details on the legal process or assistance with estate planning, it is recommended to speak to a lawyer or financial advisor familiar with South African law.

When Your Antenuptial Contract Locks in the Numbers: Lessons from Manelis v Manelis on the Accrual System

The Supreme Court of Appeal in Manelis v Manelis ZASCA 55 has delivered an important judgment on how commencement values in antenuptial contracts operate under the accrual system. The Court held that where spouses expressly record the commencement value of their estates in the antenuptial contract, those values are contractually binding and serve as conclusive proof between them, unless the contract is successfully attacked on recognised common-law grounds such as fraud, misrepresentation, duress, undue influence or common error (with rectification). ​

The dispute arose in a divorce between spouses married out of community of property with accrual. The husband’s commencement value was recorded in the ANC as R68,7 million, which the parties later agreed equated (after CPI adjustment) to R129 million shortly before dissolution of the marriage. The wife argued that this value was overstated and tried to rely on section 6(3) of the Matrimonial Property Act 88 of 1984 to “re-open” the commencement value and prove a lower figure, which would have created a substantial accrual claim in her favour.​

There were conflicting High Court decisions on whether section 6(3) makes the ANC only prima facie proof of commencement values or whether it applies only where no value is declared and a later notarial statement is used. The SCA resolved this by drawing a sharp distinction:​

• If a commencement value is declared in the antenuptial contract, the ANC is governed by ordinary contract law, and the value is binding and conclusive.​
• Section 6(3) applies only where no value is declared in the ANC and a later statement is made, or where the value is deemed nil under section 6(4)(b); in those situations, the statement or deemed nil value is only prima facie proof and may be rebutted by evidence.​

On the facts, the wife did not attack the ANC on contractual grounds and, crucially, even on her own expert’s evidence the husband’s estate at divorce was worth less (about R117,2 million) than the CPI‑adjusThe Supreme Court of Appeal in Manelis v Manelis ZASCA 55 has delivered an important judgment on how commencement values in antenuptial contracts operate under the accrual system. The Court held that where spouses expressly record the commencement value of their estates in the antenuptial contract, those values are contractually binding and serve as conclusive proof between them, unless the contract is successfully attacked on recognised common-law grounds such as fraud, misrepresentation, duress, undue influence or common error (with rectification). ​

The dispute arose in a divorce between spouses married out of community of property with accrual. The husband’s commencement value was recorded in the ANC as R68,7 million, which the parties later agreed equated (after CPI adjustment) to R129 million shortly before dissolution of the marriage. The wife argued that this value was overstated and tried to rely on section 6(3) of the Matrimonial Property Act 88 of 1984 to “re-open” the commencement value and prove a lower figure, which would have created a substantial accrual claim in her favour.​

There were conflicting High Court decisions on whether section 6(3) makes the ANC only prima facie proof of commencement values or whether it applies only where no value is declared and a later notarial statement is used. The SCA resolved this by drawing a sharp distinction:​

• If a commencement value is declared in the antenuptial contract, the ANC is governed by ordinary contract law, and the value is binding and conclusive.​
• Section 6(3) applies only where no value is declared in the ANC and a later statement is made, or where the value is deemed nil under section 6(4)(b); in those situations, the statement or deemed nil value is only prima facie proof and may be rebutted by evidence.​

On the facts, the wife did not attack the ANC on contractual grounds and, crucially, even on her own expert’s evidence the husband’s estate at divorce was worth less (about R117,2 million) than the CPI‑adjusted commencement value of R129 million. Since accrual is the amount by which the net value at dissolution exceeds the commencement value, there was no positive accrual in his estate and no claim arose. The SCA therefore dismissed the appeal with costs, including the costs of two counsel and the condonation application for late filing of the record.​

For practitioners and clients, the message is clear: commencement values recorded in an ANC are not just a formality; they are the backbone of future accrual calculations. Parties should ensure they understand and agree to these values at the time of contracting, because they will be bound by them unless the ANC itself can be set aside or rectified on solid legal grounds.​

Uncontested Divorce in South Africa and Mediation: A Simple Guide for Couples

Written by Roy Bregman, an admitted attorney with over 51 years’ experience in South African family and divorce law.

Divorce can be a challenging and emotional process. In South Africa, the legal system provides a structured approach to ensure fairness and clarity. An uncontested divorce is one where both parties agree on all terms, making it a quicker and less stressful option. This guide will simplify the process of obtaining an uncontested divorce in South Africa and explain why mediation is beneficial if there are any sticking points.

Key Takeaways

• An uncontested divorce is where both spouses agree on everything, making the process faster, cheaper, and less stressful.
• Mediation is strongly encouraged by the court rules, but you cannot be forced to sit with a mediator or to reach agreement.
• Rule 41A requires both sides to state in writing at the start of the case whether they are willing to mediate, even though mediation itself is still voluntary.
• Mediation helps couples sort out children’s issues, maintenance, and assets in a calmer, child‑focused way and often leads to a smoother uncontested divorce

What Is an Uncontested Divorce?

An uncontested divorce is when both spouses agree on all the important issues: who gets what, what happens with the children, and who pays maintenance. Because there is no fight about the terms, the court process is shorter, more predictable, and cheaper than a contested divorce where a judge must decide.

In South Africa, a court still has to grant the divorce and approve any settlement agreement, especially where children are involved, to ensure it is lawful and in the children’s best interests.

Legal Principles and Rule 41A Mediation Duty

South African divorce law is built on the idea that a marriage can be ended if it has broken down irretrievably and there is no real chance of reconciliation. At the same time, the Constitution, the Children’s Act and the Mediation in Certain Divorce Matters Act require courts and parents to put children’s best interests first.

Rule 41A of the High Court and Uniform Rules of Court introduced a specific duty to consider mediation at the start of any civil case, including divorces. Each party must file a written notice stating whether they agree to or oppose mediation, but the rule does not force anyone to actually mediate or to reach agreement. Courts increasingly look at whether a party refused mediation unreasonably when deciding who must pay legal costs.

Is Mediation Mandatory or Just Recommended?

Mediation is recommended and encouraged, but it is not compulsory in ordinary divorce cases. You cannot be ordered to reach a settlement, and you cannot be punished just because you did not want to mediate, although a completely unreasonable refusal might count against you when costs are argued.

What is compulsory is the paperwork:

• The spouse issuing summons must file a Rule 41A notice saying whether they agree to mediation.
• The defending spouse must file their own notice when they deliver their plea.

In some divisions, especially Gauteng, practice directives are moving towards more structured or even mandatory mediation for certain civil cases, but the general position remains that mediation in divorce is a voluntary process in substance.

Why Mediation Makes Uncontested Divorce Easier

Mediation is a guided conversation where a neutral mediator helps both spouses talk through disputes and find common ground. The mediator does not take sides and does not decide for you; the couple remains in control of the outcome.

Key benefits include:

• Lower cost: Mediation is usually much cheaper than preparing for a contested trial.
• Faster outcome: A series of mediation sessions can lead to a full settlement far quicker than waiting for overloaded court dates.
• Less emotional damage: The process is more cooperative and can reduce conflict, which is especially important where the couple must co‑parent after the divorce.
• Child‑focused solutions: Mediators and Family Advocates are trained to help parents craft parenting plans that truly serve their children’s interests.
• More control and flexibility: You can agree on creative, practical solutions that a court might not order in a standard judgment.

When mediation succeeds, the result is a detailed settlement agreement that can be taken to court as the basis for an uncontested divorce, saving time, money and stress

Step‑by‑Step: How an Uncontested Divorce Works

1. Agree on the Settlement

The first and most important step is for the spouses to agree on the terms of the divorce. This usually covers:

·       How property, money and debts will be divided.

• Where the children will live, how contact will work, and who will have guardianship.
• Maintenance for children and, if applicable, for a spouse.

These terms are written into a settlement agreement. Once both parties sign, it becomes a binding contract, subject to the court’s approval.

2. Draft and Issue the Divorce Summons

A divorce summons must then be drafted and issued out of either the High Court or the Regional Court that has jurisdiction over your matter. The summons normally attaches the signed settlement agreement and sets out brief details of the breakdown of the marriage.

3. Sheriff Serves the Summons

The summons is personally served on the defendant by the sheriff. This is to make sure the other spouse is formally notified and given a fair chance to respond, even in an uncontested matter.

4. Prepare for the Hearing

Your attorney will then prepare the necessary documents for court. Where minor or dependent children are involved, the settlement agreement and any parenting plan must be submitted to the Family Advocate for endorsement to confirm that the arrangements are in the children’s best interests.

5. Attend the Hearing and Get the Decree

In an uncontested divorce, only one spouse (usually the plaintiff) needs to appear in court to give brief evidence that the marriage has broken down and to confirm the settlement agreement. If the judge or magistrate is satisfied that everything is in order and fair, they grant a decree of divorce and make the settlement agreement an order of court.

Conclusion

Obtaining an uncontested divorce in South Africa is a straightforward process if both parties agree on the terms. By following the steps outlined above, couples can navigate the legal system efficiently. Mediation is a valuable tool for resolving any disputes that may arise, offering a cost-effective, faster, and less stressful alternative to traditional divorce proceedings. By prioritizing the well-being of all involved, especially children, mediation helps ensure a smoother transition for everyone.

FAQs

How long does an uncontested divorce take in South Africa?

If all paperwork is in order and both spouses fully cooperate, an uncontested divorce can often be finalised in a few weeks to a few months, depending on the court’s workload and available dates. Delays usually arise when documents are incomplete, the settlement agreement needs changes, or there are children and the papers must first go via the Family Advocate. As a rule of thumb, the smoother your agreement and documentation, the faster the court can grant the divorce decree. Always ask your attorney for a realistic timeline based on the specific court where your case will be heard.

Can we use one lawyer for an uncontested divorce?

In an uncontested divorce, it is common for one attorney to draft the settlement agreement and issue the summons where both spouses are on the same page. Technically the attorney represents the spouse who instructs them, but the other spouse often consents to the terms and signs without needing their own lawyer. However, if the other spouse feels unsure, pressured, or wants independent advice on their rights, they should consult their own attorney before signing. A truly uncontested divorce depends on both parties feeling informed and comfortable with the agreement.

What happens if we start uncontested but later disagree?

If you start the process as an uncontested divorce but new disagreements arise, the matter can shift to a semi‑contested or fully contested case. This usually means more correspondence between lawyers, possible mediation, and, if you still cannot agree, a judge may eventually have to decide the unresolved issues. It does not invalidate the steps already taken, but it can extend the timeline and increase costs. Where possible, using mediation early can often rescue an almost‑uncontested matter and bring it back on track.

Do we still need the Family Advocate if we agree about the children?

Yes, when there are minor or dependent children, the court must be satisfied that the arrangements are in the children’s best interests, even if both parents agree. The Family Advocate may need to consider or endorse your settlement agreement or parenting plan before the court will make it an order. This is a safeguard to protect children and ensure issues like primary residence, contact and maintenance are properly addressed. Your attorney will guide you on when and how the Family Advocate becomes involved in your specific case.

What if my spouse refuses mediation?

Your spouse cannot be forced to mediate, but both sides are expected to at least consider mediation seriously at the start of the case. A flat refusal does not stop the divorce from going ahead, but it may be raised later when a court looks at whether either party acted unreasonably about costs. If your spouse refuses, you can still proceed with the normal court process and try to keep the matter as focused and cooperative as possible. It may also be worth suggesting mediation again later, once emotions have cooled and both parties better understand the time and cost of a contested divorce.

If you and your spouse are considering an uncontested divorce or want to explore mediation first, contact Bregman Moodley Attorneys today. Our team can guide you through each step, help you protect your children’s best interests, and work with you to finalise your divorce as quickly and painlessly as possible.

How to Stop Noisy Neighbours in South Africa – Legal Rights & Remedies Explained

 

Living next to people who play loud music, host constant parties, or allow dogs to bark for hours can destroy your peace, affect your sleep, and harm your health. South African law gives you strong rights to a quiet, peaceful home – and practical remedies if your neighbour refuses to cooperate.​

What Counts as “Noise Nuisance”?

South African law distinguishes between:

• Disturbing noise: Noise that can be measured in decibels, such as loud music, machinery, or power tools.
• Noise nuisance: Ongoing noise that unreasonably disturbs the comfort, peace, or convenience of others, such as constant dog barking, repeated loud parties, shouting, revving engines, or noisy business activities in a residential area.​

If the noise is frequent, persistent, and unreasonable in your area and at that time of day, it may be a noise nuisance, even if it is not measured with a sound meter.​

The Law Is on Your Side

Your right to a peaceful home is protected by:

• Section 24 of the Constitution, which gives everyone the right to an environment that is not harmful to their health or wellbeing.
• The Environment Conservation Act 73 of 1989, which regulates noise control nationally.
• Municipal noise by-laws, which give municipalities power to investigate, fine, and act against people who cause unlawful noise.

Municipal officials can investigate complaints, issue abatement notices, impose fines, and even seize equipment or remove animals that cause ongoing noise nuisance.​

What the Courts Have Said

South African courts take noise nuisance seriously and are willing to step in where neighbours or businesses refuse to act.

Some important examples include:

• A theatre-restaurant ordered to stop operating until proper soundproofing was installed because loud music disturbed nearby residents.
• A dog business effectively shut down because constant barking breached noise regulations and amounted to a nuisance.
• Courts confirming that noise nuisance is actionable, and that affected residents can claim an interdict and, in some cases, damages. Courts have also reaffirmed a key principle of neighbour law: you may not use your property in a way that materially interferes with your neighbours’ peace, comfort, or convenience.

Step-by-Step: How to Deal with Noisy Neighbours

1. Talk to your neighbour
• Start with a calm, polite conversation and explain how the noise affects you and your family.
• Sometimes people are unaware of the impact and will correct the problem once it is pointed out.
2. Keep a record
• Note dates, times, type of noise, and how long it continues.
• Save messages, emails, or recordings where appropriate; these can help support your complaint later.
3. Lodge a municipal complaint
• If talking does not help, contact your local municipality’s noise control, law enforcement, or environmental health department.
• Municipalities can investigate without notice, issue written orders to stop the noise, impose fines or criminal penalties, and even confiscate equipment or impound animals in serious cases.
4. Approach the High Court if necessary
• If the noise continues despite warnings and municipal action, you can apply to the High Court for:
• An interdict to stop the noise.
• Damages if you have suffered loss or harm.
• Urgent relief in severe cases where your health, safety, or dignity are affected.

Courts regularly grant orders to stop ongoing noise, and in serious cases have closed or restricted businesses that refuse to respect neighbours’ rights.​

FAQs: Common Questions About Noise Nuisance

• Are there fixed noise limits?
  Each municipality sets its own limits, often with stricter rules at night than during the day.
• Is barking considered noise nuisance?
  Yes – persistent barking that interferes with neighbours’ comfort can be unlawful.
• Can the municipality inspect without warning?
  In most areas, by-laws allow officials to investigate suspected noise nuisance without prior notice.
• Can I get an urgent interdict?
  Yes, especially if the noise is harming your health, wellbeing, or safety.
• Can a court force a business to close?
  Yes. South African courts have closed or restricted businesses where noise nuisance continues despite complaints and enforcement.

 You Don’t Have to Suffer in Silence

Unreasonable, ongoing noise is not something you simply have to “put up with”. The law gives you clear remedies – from friendly discussion to municipal enforcement, to High Court interdicts where necessary.

If noisy neighbours or a nearby business are disrupting your peace, affecting your sleep, or harming your health, consider getting legal advice about your options and the best strategy for your situation.