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When is a Will valid, and when can it be set aside?

A Will which is regular and complete on the face of it will be presumed to be valid until such time as it is established that it is not in fact valid. But when would that be the case?

The most common reason why a Will may be invalid would be due to lack of compliance with the formalities as prescribed in the Wills Act 7 of 1953. However, the Act provides in Section 2(3) for a court to order that the Master accept a document as a Will, despite the fact that not all the formalities were complied with, if the court is satisfied that the document was intended to be that person’s Will or an amendment thereto.

A Will may also be invalid if the testator’s signature on the document is not authentic, or if the testator did not have the mental capacity to understand the nature and effect of drafting a Will. A Will would also be invalid if the testator was unduly influenced by another person, with the result that the testator did not exercise his/her free will during the drafting process. In all these cases, evidence about the circumstance surrounding the drafting and signature of the Will must be brought before the court, with concomitant costs and delays in finalising an estate.

Should you have queries about the validity of your existing Will or wish to draw up or amend a Will which correctly reflects your wishes and complies with all the formalities, please contact our Estate and Trust Department.

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