How to Contest a Will in South Africa

Losing a loved one is never easy, but the stress and confusion can be worse if you believe their will does not reflect their true wishes or there’s something legally wrong with it. If you’re worried that a will is invalid, suspicious, or unfairly excludes someone who ought to inherit, you may be able to contest it. This article walks you through who can challenge a will, on what grounds, the process, possible outcomes, costs, and practical advice for Johannesburg residents.

When Can You Contest a Will in South Africa?

You can’t contest a will just because you’re unhappy with it. South African law allows you to challenge (or “contest”) a will only for specific legal reasons. These are:

• Lack of Testamentary Capacity: The person who made the will (the “testator”) must have been of sound mind and understood what they were doing when signing it. If you can show the person had dementia, was heavily sedated, or mentally incapable at the time, this may be grounds to contest the will.
• Undue Influence or Coercion: The will must be made freely and voluntarily. If someone pressured or manipulated the deceased—especially a person of trust, like a carer or relative—to change the will in their favour, this may make the will invalid.
• Fraud or Forgery: If you have evidence that the will is fake, or the signature is forged, it can be set aside by the court.
• Non-Compliance With Legal Formalities: The Wills Act says a will must be in writing, signed by the testator (or by someone else who is authorised, in their presence and on their instruction), and signed by two witnesses at the same time. If any of these rules were omitted, the will may be invalid.
• Revocation: If the deceased destroyed the will or made a new, valid will, the old one falls away.

Who Can Contest a Will?

Not just anyone can challenge a will. To have “standing,” you must be directly affected by the will’s result. Usually, this means you are:

• An heir or beneficiary under the old or new will,
• Someone who would inherit if there was no will (according to intestate succession rules),
• Someone excluded under suspicious circumstances.

How to Contest a Will: Step-by-Step Guide

1. Consult an Attorney Always start here. An estates, wills, and succession law specialist can tell if your doubts have legal merit. They’ll also explain your chances, risks, and possible costs.
2. Gather Your Evidence Get all documents and proof you can. This includes the will, any earlier wills, proof of the deceased’s mental state (such as medical reports), letters, emails, and statements from people who were there.
3. Lodge a Caveat at the Master’s Office Your attorney can file a “caveat” (formal objection) with the Master of the High Court, who handles deceased estates. This stops the estate from being wound up or assets distributed until your challenge is resolved.
4. Serve Notice to Interested Parties You and your attorney must notify others who’ll be affected: heirs, beneficiaries, the executor, and the Master of the Court.
5. Court Proceedings If negotiation fails, your attorney applies to the High Court. Court documents will explain your grounds and provide evidence supporting your case. There may be preliminary hearings or, if disputed, a full trial with testimony.
6. The Court’s Decision After weighing all the evidence, the court will decide if the will is valid. If not, it is set aside; the estate is then handled according to any earlier valid will, or if there isn’t one, the intestate succession rules apply.

Timeframes and Deadlines

There’s no set legal cut-off time but act as soon as possible. Contesting after the estate is wound up is extremely difficult.

Costs and Risks

Legal costs add up fast, especially if a full trial is needed. Costs may include your attorney’s fees, expert witnesses (such as doctors or handwriting experts), and court fees. If your challenge fails, you may be ordered to pay the other party’s costs as well.

What If There’s More Than One Will?

The most recent valid will is used unless you prove the latest was invalid (due to fraud, mental incapacity, etc.). In that case, the previous valid will applies, or intestate succession if none exists.

Practical Tips

• Don’t delay: Contact a qualified attorney as soon as you notice something wrong.
• Collect evidence early: It gets harder to find after time passes.
• Be realistic: These disputes can be stressful and expensive. Sometimes a negotiated settlement is better than going to court.

Conclusion

Contesting a will is a serious step, so don’t take it lightly. You need solid legal grounds and proper evidence. Get advice from an experienced attorney who can guide you through the process and help you decide if it’s worth it. Courts do set aside invalid wills, but they also respect the documented wishes of the deceased if all legal requirements have been met.