Originally published: 11 February 2015 | Last updated: 13 April 2025
Any Last Will and Testament in South Africa can be contested, regardless of whether it was drafted by a lawyer. The grounds for contesting include improper execution, lack of mental capacity, undue influence, fraud, and mistakes. Understanding these grounds helps you create a Will that is difficult to challenge.
Understanding the grounds for contesting a Will helps you create one that cannot be challenged.
What Does It Mean to Contest a Will?
Contesting a Will is a legal process where an interested party challenges the validity of a Will in court. In South Africa, the High Court has jurisdiction over Will disputes. The person contesting must have legal standing (locus standi)—typically a beneficiary, potential beneficiary, or family member who would inherit under intestate succession.
What Are the Legal Grounds for Contesting a Will in South Africa?
1. Improper Execution Under the Wills Act
The Wills Act 7 of 1953 requires specific formalities. A Will can be invalidated if the testator did not sign every page, if there were not two competent witnesses present, if witnesses were not present simultaneously, or if a beneficiary served as a witness. Online Will services like LegalWills.co.za include clear signing instructions to prevent these errors.
2. Mistakes and Errors in the Will
Factual errors, ambiguous language, or contradictory clauses can be grounds for challenging specific provisions. While courts may interpret minor errors, significant mistakes can invalidate portions of or the entire Will.
3. Fraud and Forgery
If a Will was forged, altered after signing, or created through deception, it can be declared invalid. This includes situations where the testator was deceived about the contents of the document they signed.
4. Lack of Testamentary Capacity
The testator must be of sound mind when making the Will. They must understand the nature of making a Will, the extent of their assets, and who their potential beneficiaries are. Conditions such as dementia, Alzheimer’s disease, or severe mental illness at the time of signing can form the basis for a challenge.
5. Undue Influence
If someone pressured, manipulated, or coerced the testator into making specific provisions, the Will can be contested. Undue influence is often alleged when a caregiver, family member, or advisor benefits disproportionately. South African courts assess whether the testator exercised free will.
6. Failure to Provide for Dependants
Under South African common law and the Maintenance of Surviving Spouses Act 27 of 1990, a testator has a duty to maintain certain dependants. A Will that completely disinherits a surviving spouse or minor children may be challenged on these grounds.
7. Revocation by a Later Will
If a more recent valid Will exists, it typically revokes earlier Wills. Disputes can arise when multiple versions of a Will exist and it is unclear which is the most recent valid version.
Do Lawyer-Drafted Wills Get Contested Less Often?
Not necessarily. Any Will can be contested regardless of who drafted it. The key factors are proper execution, clear language, and the testator’s mental capacity—not the drafter’s qualifications. A well-structured online Will that meets all legal requirements is just as defensible as a lawyer-drafted one.
How Can You Prevent Your Will From Being Contested?
- Ensure strict compliance with the Wills Act signing and witnessing requirements
- Use clear, unambiguous language in all provisions
- Include a clause explaining your reasoning for any unusual distributions
- Consider having a medical professional confirm your mental capacity at signing
- Update your Will regularly to reflect current circumstances
- Store the original Will safely and inform your executor of its location
Frequently Asked Questions
Can anyone contest a Will in South Africa?
No. Only persons with legal standing can contest a Will—typically beneficiaries, potential beneficiaries, or family members who would inherit under intestate succession.
How long do you have to contest a Will in South Africa?
There is no fixed statutory time limit for contesting a Will in South Africa, but claims should be brought as soon as possible. Unreasonable delay can be used as a defence against the claim.
Is a Will drafted online easier to contest than a lawyer-drafted Will?
No. The method of drafting does not affect contestability. What matters is proper execution, clear language, and the testator’s mental capacity at the time of signing.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
