Reasons for invalidating a will

"Paul feels helpless in this situation." But is he?

The chances of success are slim, but wills can be challenged in court.

Given that a will, which is regular and complete on the face of it, is presumed to be valid until its invalidity has been established, the onus is on the person alleging invalidity to prove such allegation (see Kunzs v Swart and Others 1924 AD 618).

The standard of proof is the same as that which applies in all civil cases – proof on a balance of probabilities.

In terms of the Maintenance of Surviving Spouses Act 27 of 1990, if a marriage is dissolved by death, the survivor will have a claim against the deceased spouse’s estate for the provision of his or her reasonable maintenance needs until death or remarriage, insofar as he or she is unable to provide for such needs himself or herself.

These changes may be made against the estate of the testator despite the provisions of his or her will and accordingly allow interested and affected parties to challenge a will on specific grounds.

Historically the courts have strictly interpreted s 2 of the Wills Act 7 of 1953 (the Act) regarding the formalities for the validity of a will and they had no recourse provisions allowing for any deviation.

This sometimes resulted in adversity for the beneficiaries.

That avenue may make more sense than pursuing a civil case in which the cost is prohibitive, Fanizza says.After Paul Young's mother died in February 2010, he was shocked to discover that she had left a 0,000 home, all its contents, all her checking accounts and 80 percent of the rest of her property to his sister.Young's grown stepdaughter, on whom his mother had doted since she was a toddler, was left completely out of the will.There are various reasons why interested parties want to challenge a will.It may be as a result of the relationship they had with the deceased, where they claim that the deceased promised to leave them a particular item or sum of money.

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