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Can Someone Challenge A Will?
Can Someone Challenge A Will?
10 Sep 2020

Having a will in place means that you get to control who receives your assets and investments when you have passed on. But is it possible for someone to challenge what you have written in your will?

Having a legally recognised will

Creating a legally recognised will is one of the ways in which you can get to decide who receives which assets and how you would like them to receive it and when. You can create a legally recognised will through a bank, a life insurer (which we offer online) or an executor of your choice.

For your will to be legally recognised, you must make sure that it complies with the Wills Act of 1953 which requires that you are:

Competent to draft a will. This means you need to be 16 years or older and understand what you are doing. It will not be legalised if the person who has drafted the will has a mental incapacity to understand what a will is and how it affects them.

You cannot be a beneficiary. If you are drafting the will by hand or electronically, you cannot list yourself as a beneficiary. Even if you have someone drafting the will on your behalf, they cannot list themselves as a beneficiary.

All documents need to be signed. This is to make the documents valid. The will needs to be signed by the testator (Person who is creating the will), and two other witnesses who are present at the time. In a situation where a testator is disabled or has suffered a stroke, they can sign using their fingerprint. The two witnesses need to be at least 14 years or older to sign.

Date your will accordingly. Although this is not a legally binding requirement, it can make it easier to keep track of if you have more than one will in place.

Can it be challenged? It depends on certain circumstances. However, no one can come and challenge a legally recognised will based on a verbal agreement or through inheritance of the blood line. If there is no will in place, it makes it difficult to stop people from claiming your assets. Some of the ways in which a will can be challenged is if:

Capacity. It can be proven that the Testator (owner of the will) did not have a sound mind to understand the impact of their actions. If there is proof that the Testator acted under pressure or manipulation of any sort, the will can be challenged.

The official will. It needs to be proven that the will in question is the final will and testament of the person before passing on. Should there be evidence that this is not the case, it could be contested in a court of law. It also means that all the requirements to make a will legal had been carried out before the Testator died.

Forged or created under the influence. Revealing that a will was forged or created in an environment where the Testator was under duress can make the will invalid. A person will need hard copy evidence to prove that this was the case.

Testator can make the will invalid. The Testator can choose to revoke a previous will by their own declaration in writing. It is also advisable for people who want to draft a will to include a revocation clause in any other will they may have drafted. 

Anything that contravenes with the Wills Act of 1953 can cause a will to be considered invalid. It is also important to be aware that a person can only contest a will within a certain time frame, usually when the estate and assets of the Testator are being finalised.

How to protect your legacy

While we may not know what tomorrow holds for us, it is important to create a safety net that will ensure that your loved ones are taken care of. At MiWayLife, we offer legally recognised wills that can be kept up to date so that you will have peace of mind knowing that your estate and assets end up in the right hands. 

Need more information on MiWayLife? Read about our life insurance product, or get a life insurance quote in 30 seconds. Alternatively, call us on 0860 64 54 33 .
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Terms and conditions apply. Eligibility, cover and benefits are determined on individual risk profile. MiWayLife is an authorised FSP (No. 45741) and its product offering is underwritten by Sanlam Life Insurance Limited, a registered long-term insurer. MiWayLife is a division of Sanlam Life Insurance Limited - Reg No. 1998/021121/06