Grounds for Contesting Wills

If you feel a will written by your relative has been created through unfair means, you have the right to hire an attorney and protest the will in court. Under the family protection law, you can apply to family court or a high court asking for compensation if you have been left out of the will of the deceased when you are the husband, wife, civil partner, child, grandchild, dependant step child or parent in relation to the deceased. The court will examine your claims and then make a decision as to whether the deceased had an unfulfilled moral duty towards your maintenance or support.

If you are not a close relative, you can still make a claim in case you have worked under the deceased at some point or provided some manner of service without getting suitably recompensed. Proof will need to be given of the service provided and the absence of satisfactory compensation. You must be able to prove that the deceased had promised to leave you something in the will and that the bargain was not kept up on their end. The promise needs to have been made before the service was rendered. The judge then decides whether you should receive payment.

If you are the deceased’s legal spouse, either through a civil union or as de facto partner, you can apply for the property to be divided according to the equal-sharing rules act, or not divide the property but receive the whole of the property instead of it going to the surviving partner named in the will. You must carry credible evidence that supports the claim of your relationship, along with the circumstances that led to the relationship being kept secret from other members of the deceased’s family.

There may also be a case where you feel dissatisfied with the legal validity of the will, and in such a situation, you can again challenge it. In order to substantiate your claim in front of the judge, you must provide evidence either that the deceased was not of sound mind while signing the will, the will does not carry the proper signatures, the testator was not aware and didn’t approve of the will’s content while signing, or that the testator was under undue influence at the moment of signing the will. If you can successfully make your case in court, you can prevent the earlier will from taking effect. Finally, in case no will exists, the court understands the deceased to have died ‘interstate’ and then it is up to the court to decide how the property is to be divided among the surviving relatives.