WHEN CAN I HAVE A WILL SET ASIDE EVEN THOUGH THE FORMALITIES HAVE BEEN OBSERVED ?

1. A will which is complete and regular on the face of it (ie where all the prescribed formalities have been complied with) is presumed to be valid until the contrary has been proved.

2. Before issuing letters of executorship, the Master conducts a preliminary investigation and checks about 10 or so technical aspects, eg whether a witness appears to be a beneficiary named in the will (in which case he would not be entitled to inherit).

3. A will may be invalid inter alia –

3.1 where the testator does not realise that he is signing a document in which he expresses his intent as to how his assets are to devolve following his death; or

3.2 The testator executes the will as a result of fraud, duress or undue influence. Where a will has been signed in any of these circumstances, the testator is not acting voluntarily and one of the bases required for a valid will is missing.

4. The expression of a testator's last wishes must be the result of the exercise of the testator's own will. Undue influence has been described as an influence which has 'caused the execution of a document pretending to express a testator's mind which really does not express his mind but something else which he did not really mean'.

5. In order to constitute undue influence the behaviour of the influencer must result in the substitution of her wishes for the wishes of the testator.

6. The legal responsibility for establishing and influence rests upon the party who alleges that undue influence was brought to bear on the testator. Whether or not there has been undue influence is a question which must be determined with reference to the facts and circumstances of each particular case. The mental state of the testator and the testator's ability to resist instigation and prompting are all factors to be considered. The relationship between the parties may also be important and may give rise to a metus reverentialis (literally, intimidation arising out of over-respect/fear [on the part of the intimidated party]). The relationship might be such that the request by the one party to the other might be regarded by the latter as a command which must be obeyed. The mere existence, however, of a relationship of a particular kind does not give rise to a presumption that the wishes of another has been substituted for the testator's wishes. This substitution has to be proved.

7. If, after the execution of the will, a period of time lapses during which the testator could have altered the will should he have wished to do so, his failure to take advantage of this opportunity is a circumstance from which it may be inferred that the will was not made against the testator's wishes or that the testator had subsequently voluntarily and tacitly confirmed that will.