Reasons for invalidating a will
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.
The reasons for such a challenge may vary from a formal shortcoming to claims of foul play.
This article provides a framework for practitioners by providing an overview of the possible reasons why a will may be challenged and a summary of the general principles.
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.
That avenue may make more sense than pursuing a civil case in which the cost is prohibitive, Fanizza says.
MM Corbett, G Hofmeyr and E Kahn (The Law of Succession in South Africa 2ed (Cape Town: Juta 2001) at 58) note that the court does not, however, have a general discretion to condone non-compliance with the prescribed formalities.
The wording of s 2(3) makes it clear that only in the event that the specific requirements are met and the court is satisfied that the document was intended to be the will of the testator, must the court then grant an order directing the master to accept the document as a will.
New York-based estate attorney Herb Nass regularly takes calls from people who feel dissatisfied about a departed loved one's will and want to know about filing a challenge.
"People are trying to do it more and more as the parents of baby boomers are dying, and I'm seeing a lot of rivalry between siblings," says Nass, author of The 101 Biggest Estate Planning Mistakes.