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Published:Monday | March 15, 2010 | 12:00 AM
Sherry-Ann McGregor , attorney-at-law.

Under what circumstance can the will be challenged?

A will is a very special document, because it allows a person to speak from the grave dictating what should happen to their assets, who should benefit and who should not. Provided it is drafted and executed in accordance with the provisions of the Will's Act, the will should be enforced and the distribution of the estate as the deceased person wishes.

There are instances when the will may be struck down as being invalid. Some of the reasons include a challenge to the deceased person's mental capacity to make the will, issues of forgery, fraud or duress. But there are only limited circumstances in which the court will make an order to alter the provisions of the will without declaring it invalid.

The scenario which is created here is one in which a perfectly valid will is adjusted because an individual is able to prove that the provisions made for him or her under that will were inadequate, or that there was simply no mention of him or her in the will. The Inheritance (Provision for Family and Dependants) Act opens this door, but the persons who are entitled to rely on the Act must fall within the category of persons identified in section 6. They are:

wife, husband or common law spouse of the deceased;

a child who is 18 years of age or younger, up to 21 years of age and pursuing academic studies, or one who is older but suffering from a mental or physical disability;

a parent who was being wholly, partly, or was legally entitled to be maintained by the deceased;

a former wife or husband of the deceased who was being wholly, partly or was legally entitled to be maintained by the deceased by virtue of a court order or agreement.

This category of persons must make an application to the court within six months after the date on which representation of the deceased estate was first taken out, or within longer period as the court permits. The application must show that the deceased person's will did not make reasonable financial provision for the maintenance of the applicant, and seek an order for such provision to be made by way of instalments, a lump-sum payment, transfer of an asset, establishment of a trust or such other order as the court may consider just.

Section 7 of the Act outlines several factors, which the Court must consider when faced with an application to vary the provisions of a deceased person's will. The list, though not exhaustive, includes:

the size and nature of the deceased estate;

the applicant's present and future financial needs;

the financial resources and needs (including future needs) of any beneficiaries named in the will or of any other person who is making an application pursuant to section 6 of the Act;

the deceased person's obligations and responsibilities to all applicants under section 6, as well as the beneficiaries named in the will;

whether any of the applicants or beneficiaries have any mental or physical disabilities;

the deceased person's reasons for not making any provision or any adequate provision for the applicant;

the conduct of the applicant towards the deceased person, and the quality of their relationship during the deceased person's lifetime.

Whether the application is made to the Supreme Court or to the Resident Magistrate's Court, the Act makes it clear that an order should not be made to vary the provisions of a deceased person's will unless the circumstances of the case warrant such an order, and only after very careful enquiry.

It is also clear that the Act seeks to ensure that all persons carefully draft their wills so that adequate provision is made for the persons who were entitled to depend on them for financial support while they were alive.

Sherry-Ann McGregor is an attorney-at-law and mediator. Please send your comments and questions to or