07/10/2026
๐๐๐ฌ ๐ข๐ญ ๐๐ฏ๐๐ง ๐๐ข๐ฌ ๐๐ข๐ ๐ง๐๐ญ๐ฎ๐ซ๐? ๐๐จ๐ฐ ๐ญ๐จ ๐๐ฏ๐๐ซ๐ญ๐ฎ๐ซ๐ง ๐ ๐
๐ซ๐๐ฎ๐๐ฎ๐ฅ๐๐ง๐ญ ๐๐ข๐ฅ๐ฅ
โ๐๐ฆ๐ธ๐ข๐ณ๐ฆ ๐ต๐ฉ๐ฆ ๐ธ๐ฐ๐ญ๐ง ๐ช๐ฏ ๐ด๐ฉ๐ฆ๐ฆ๐ฑโ๐ด ๐ค๐ญ๐ฐ๐ต๐ฉ๐ช๐ฏ๐จ.โ (๐๐ณ๐ฐ๐ฎ ๐๐ฆ๐ด๐ฐ๐ฑโ๐ด ๐๐ข๐ฃ๐ญ๐ฆ๐ด)
Your relative or friend dies, having at the last minute made a new will leaving everything to a new sole heir. Youโre suspicious: the deceased was vulnerable, perhaps dying or suffering from dementia, and youโre convinced that they were taken advantage of by a manipulative fraudster. What can you do about it?
The bad news is that itโs never easy to have a will set aside. Our courts have repeatedly said that they will not do so lightly, and the onus will be on you to prove invalidity. But, as a recent High Court decision illustrates, it can be done.
๐ผ ๐จ๐๐ ๐ฉ๐๐ก๐ ๐ค๐ ๐ฉ๐ฌ๐ค ๐ฌ๐๐ก๐ก๐จ
This unhappy saga revolves around the two conflicting wills of a Durban man (a โbubbly, talkative social butterflyโ) who died on 8 February 2022, just a day short of his 91st birthday and living in deteriorating mental and physical health in a care home.
In his earlier will, dated 29 September 2020, he had left everything to five charities. But then on 1 February 2022, just seven days before his death, he supposedly signed a second will in which he revoked all previous wills and named as his sole heir a man who claimed to have become a โsonโ to him.
The charities asked the High Court to declare the second will void, and the new heir fought back with a story that he had become like a son to the deceased after supposedly saving him and his wife from a robbery in 2017. It was, he said, no surprise that the deceased had decided to leave everything to him.
๐๐๐ ๐๐๐๐ฉ๐๐๐๐ ๐ฌ๐๐ก๐ก ๐จ๐๐ฉ ๐๐จ๐๐๐
The Court was faced with conflicting evidence from a long list of witnesses for both sides. Its final conclusion? The charities had successfully produced clear evidence that the second will was invalid on the grounds of undue influence and of fraud relating to the signature on it.
The Court identified a litany of inconsistencies, contradictions and improbabilities in the evidence supporting the new heirโs case, concluding that the entire thread of his evidence bore โthe hallmarks of a carefully thought-out plan to take advantage of the vulnerable position of a frail old man who befriended someone at a local department storeโ.
Specifically, on the day the deceased was supposed to have voluntarily signed the second will, he was clearly at deathโs door, severely distressed and frail, breathless, struggling to speak, confused and unable to feed himself. His mental capacity to sign a will was in great doubt, and a nurse had witnessed the new heir kneeling next to the deceased and trying to get him to sign papers, which the deceased refused to do, shaking his head and saying โnoโ. To top it all, a handwriting expert suspected elements of forgery in the second willโs signature.
No surprise then that the Court declared the deceasedโs deathbed will null and void and of no force and effect, leaving the original 2020 will as his last valid will and testament.
๐๐๐๐ฉ ๐ฎ๐ค๐ช ๐ข๐ช๐จ๐ฉ ๐ฅ๐ง๐ค๐ซ๐ ๐ฉ๐ค ๐๐๐ซ๐ ๐ ๐ฌ๐๐ก๐ก ๐ฃ๐ช๐ก๐ก๐๐๐๐๐
When you challenge the validity of a will the onus will be on you to prove your case, and courts will not lightly set aside a will. But it can be done, and the Court provided some useful pointers on what youโll have to prove:
โข ๐๐ผ๐บ๐ฝ๐ฒ๐๐ฒ๐ป๐ฐ๐ฒ ๐๐ผ ๐บ๐ฎ๐ธ๐ฒ ๐ฎ ๐๐ถ๐น๐น must be assessed at the time of signing the will. The test is whether the testatorโs โmind and memory were sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his willโ.
โข ๐จ๐ป๐ฑ๐๐ฒ ๐ถ๐ป๐ณ๐น๐๐ฒ๐ป๐ฐ๐ฒ requires proof of โconduct which is akin to coercion or fraud ... to make a bequest that [the deceased] would not otherwise have madeโ.
โข ๐๐ฟ๐ฎ๐๐ฑ needs to be clearly proved. As the Court put it โthe threshold to meet the requisite proof to establish fraud is highโ.
โข ๐๐ผ๐ฟ๐ด๐ฒ๐ฟ๐ requires you to prove that the signature on the will isnโt authentic. In this case, there were conflicting conclusions from two different handwriting experts, and although the Court preferred the opinion of the expert who said his examination of the signature had revealed fraud, it weighed both conclusions against the evidence as a whole to assess where the balance of probabilities lay.
โข ๐ง๐ต๐ฒ ๐ฝ๐ฟ๐ผ๐ฏ๐ฎ๐ฏ๐ถ๐น๐ถ๐๐ถ๐ฒ๐ supporting the charitiesโ case played a major role in the declaration of invalidity, with the Court expressing doubt that the deceased would have suddenly decided to disinherit the charities, especially as his 2020 bequest to them traced its roots back to a 2008 will made jointly with his wife. Clearly the charities had been close to the coupleโs hearts for many years. Whatโs more, the charitiesโ witnesses were not heirs under the earlier will and they had nothing to gain beyond honouring the last wishes of a dying man they were clearly very fond of.
๐๐ณ๐ฐ๐ท๐ช๐ฅ๐ฆ๐ฅ ๐ฃ๐บ ๐๐๐ ๐๐ฏ๐ค. ๐๐ต๐ต๐ฐ๐ณ๐ฏ๐ฆ๐บ๐ด
ยฉ ๐๐ฐ๐ต๐๐ฆ๐ธ๐ด. ๐๐ญ๐ญ ๐๐ช๐จ๐ฉ๐ต๐ด ๐๐ฆ๐ด๐ฆ๐ณ๐ท๐ฆ๐ฅ.
๐๐ข๐ฌ๐๐ฅ๐๐ข๐ฆ๐๐ซ
The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for professional, detailed and appropriate advice.
www.evhinc.co.za
