Few family disputes are as painful as a fight over a will. Sometimes a will seems to contradict everything the deceased said during their lifetime. Sometimes it was signed in hospital, shortly before death, in favour of a new partner or carer. Sometimes there are two wills, and the family cannot agree which one counts.
South African law gives people wide freedom to leave their estates as they choose. A will cannot be set aside simply because it seems unfair. But a will can be challenged if it was not validly executed, if the testator lacked capacity, or if it was the product of undue influence, fraud or forgery. The courts can also rescue a will that does not comply with the formalities, if they are satisfied it reflects what the deceased intended.
That second power is increasingly relevant. In a 2026 decision, the Northern Cape High Court ordered the Master to accept a will that had been signed electronically, finding that correspondence with the institution that drafted it clearly showed that the deceased intended it to be her last will. Courts are focused on intention, but the evidence must be clear.
The grounds for challenging a will
1. The will does not comply with the formalities
Section 2(1)(a) of the Wills Act 7 of 1953 sets out the formalities for a valid will. In broad terms, the will must be in writing, signed at the end by the testator (or by someone at the testator’s direction), and the signature must be made or acknowledged in the presence of two competent witnesses, who must also sign in the testator’s presence and in each other’s presence. Each page other than the last must be signed. Additional requirements apply if the testator signs with a mark or someone signs on their behalf.
If these formalities are not met, the Master will not accept the will unless a court orders otherwise.
2. The testator lacked capacity
Under section 4 of the Wills Act, a person aged 16 or older may make a will, unless at the time they were mentally incapable of appreciating the nature and effect of their act. The question is the testator’s state of mind at the moment of signing. A diagnosis of dementia or serious illness does not automatically mean a person lacked capacity, and a person may have had a lucid interval.
The law presumes that a person had capacity, so the person challenging the will must prove the contrary on a balance of probabilities. Medical records, evidence from treating doctors and nurses, and the circumstances in which the will was drafted and signed are usually decisive.
3. Undue influence, duress, fraud or forgery
A will may be set aside if it was obtained through undue influence, meaning pressure that overpowered the testator’s own free will, rather than ordinary persuasion or affection. Relevant factors include the testator’s vulnerability, the beneficiary’s involvement in arranging the will, isolation from other family members, and a sudden departure from earlier wills. Undue influence is difficult to prove because it usually happens in private, so the case is often built on circumstantial evidence.
A forged will, or one obtained by fraud or duress, is invalid. Handwriting experts may be needed where a signature is disputed.
4. A beneficiary was a witness or the writer
Under section 4A of the Wills Act, a person who witnesses a will, signs on behalf of the testator, or writes out the will (or their spouse) is generally disqualified from inheriting under it. There are exceptions, including where a court is satisfied that the person did not defraud or unduly influence the testator, and where the person would in any event have inherited the same or more on intestacy.
5. The will was revoked
A later will, a destroyed will, or clear revocation can mean that the document presented is not the deceased’s last will. Disputes often turn on whether the deceased intended to revoke an earlier will when making a new one.
When the court can save a defective will
Section 2(3) of the Wills Act gives the High Court power to order the Master to accept a document as a will, even though it does not comply with the formalities, if the court is satisfied that the deceased drafted or executed it and intended it to be their will. The same section applies to documents intended to amend a will.
This works both ways in a dispute. A family member may use section 2(3) to uphold an informal will, such as an unsigned draft, a will with missing witness signatures, or, as in the 2026 case, an electronically signed document. Another family member may oppose the application by arguing that the evidence does not show the required intention. The court will look closely at who prepared the document, what the deceased said and did, and whether the document was final or only a draft.
The process
- Act early. If you have concerns about a will, raise them with the executor and the Master as soon as possible, preferably before the estate is distributed.
- Gather evidence. This may include medical records, earlier wills, communications with the deceased, statements from witnesses and the attorney or institution that drafted the will.
- Court application or action. The Master accepts or rejects wills on their face but does not decide disputed questions of capacity or undue influence. Those are decided by the High Court, usually through an application or, where facts are seriously disputed, a trial.
- Protect the estate. Where distribution is imminent, an interdict may be needed to prevent the executor from distributing assets until the dispute is decided.
- Objecting to the account. Interested persons may also lodge objections to the executor’s liquidation and distribution account while it lies open for inspection, under the Administration of Estates Act 66 of 1965.
Time limits apply. Claims arising from an estate are subject to the Prescription Act 68 of 1969, and delay can make it harder to recover assets that have already been transferred. Litigation can also be expensive, and costs orders may follow the result, so it is important to assess the strength of the evidence early. In many cases, mediation offers a quicker and less damaging route to resolution.
A practical checklist
- Obtain a copy of the will and any earlier wills.
- Check the formalities: signatures, witnesses and initialled pages.
- Find out who drafted the will and the circumstances in which it was signed.
- Request the deceased’s medical records where capacity is in doubt.
- Identify witnesses who saw the deceased around the time of signing.
- Notify the executor and the Master of your concerns in writing.
- Take legal advice on the strength of your case, costs and time limits.
- Consider mediation before or alongside litigation.
How O’Reilly Law can help
We advise heirs, family members and executors on disputed wills, including challenges based on capacity, undue influence and formal defects, and section 2(3) applications to have informal wills accepted. We assist with urgent interdicts, objections to estate accounts and mediated settlements. Through O’Reilly Fiduciary, we also draft wills and advise on estate planning to reduce the risk of disputes.
Contact us for advice on a disputed will or estate.
Related reading: Choosing an executor, and what executors actually do · Dying without a will: how intestate succession works
This article is general information and not legal advice. Correct as at November 2026.