Challenging a Will
In certain circumstances the validity of a will can be challenged . In determining whether a will is valid, a Court will consider the following questions:
- Is the will the last will made by the deceased;
- Was it executed in accordance with requirements of the Succession Act;
- Was the will altered after it was written;
- Did the will maker have the testamentary capacity to make the will; and
- Was there any undue influence involved when the will was drawn up.
A person making a will must have testamentary capacity. This means they must be of sound mind, memory and have understanding at the time of making the will. A person is regarded as having the required capacity if they:
- Know what a will is;
- Realise in general terms the amount and type of property they are disposing of;
- Can weigh the “moral claims” that they should be considering when deciding who to leave property to; and
- Know and approve of the contents of the Will.
A will can also be challenged if there is a suggestion that the person who assisted the maker to draw up the will stands to gain from the will. A court will however only overturn a will on the grounds of undue influence where it is satisfied the will maker’s mind was coerced to such an extent that the resulting will was contrary to the will maker’s real intentions. This is extremely difficult to prove.
Claims may arise where the executor of the estate fails to apply for probate or to properly distribute to assets of beneficiaries.
Segelov Taylor can provide advice and assist you in circumstances where you believe a will is invalid, fraudulent or there has been undue influence in making a will or where there are issues as to probate. Please contact our office and we will provide you with a free assessment of your case. In certain circumstances Segelov Taylor will act on a ‘no win no fee’ basis in challenging a will.