Introduction

Wills differ from contracts and other executed documents in one key way: unlike other documents, wills take effect only on the death of the maker (the testator). The testator is unavailable to determine whether their will is valid and constitutes their true intentions. Thus, the validation and interpretation of a will is rather unique with respect to the significance of the surrounding circumstances and the identity and status of the parties involved.

As such, it is advisable to not only prepare a will that is clear and legally valid, but also ensure that suitable safeguards have been implemented to fortify it against any anticipated challenge. This article discusses the legal grounds on which a will may be challenged and some of the precautions that testators can take to help validate their will and ensure that their wishes are carried out.

Grounds of challenge

After a testator passes away, their will may be challenged before a court by any person who claims to have an interest in the estate. If the court finds that the challenge is sustainable based on the evidence before it, it will declare the will void and set it aside.

One of the grounds on which a will may be challenged is that the testator had a lack of testamentary capacity and was not of 'sound disposing mind' (ie, did not have the cognitive powers to understand the nature and effect of the dispositions made in the will). Such challenges are particularly likely if the testator was old or infirm.

A will may also be challenged on the ground that there was undue influence or coercion which prevented the testator from exercising free will in its preparation. The courts will also examine whether a will is a forgery or was prepared by fraud.

To ascertain whether a will is valid, the courts will examine all of the surrounding circumstances which led to its preparation. If any circumstances appear to be suspicious, the courts will likely be hesitant to declare the will valid. Such suspicious circumstances include:

  • a shaky or doubtful signature;
  • significant overwriting and strikethroughs;
  • indications of the testator's feeble or debilitated mind;
  • an inexplicable absence of provisions for natural heirs; and
  • unnatural or improbable dispositions.

Need for safeguards

The onus is generally on the person relying on the will (heirs or executors) to prove its valid execution and satisfactorily explain any suspicious circumstances surrounding it (whether in the court's opinion or alleged in case of a challenge). As noted above, testators are not available to aid heirs or executors, so can do so only through materials which they leave behind.

Thus, if a testator anticipates that their will may be challenged, in addition to writing a clear and unequivocal will, it is prudent to leave behind adequate supporting evidence.

Safeguards

The following safeguards can be implemented to ensure that a testator's wishes are followed:

  • Explain contentious bequests – testators may choose to exclude natural heirs or distribute assets among heirs unevenly, which may seem unnatural or unfair to the court (eg, if the testator has two children, but bequeaths a bulk of the estate to one). If the testator is making such a bequest, they should explain the background and rationale for this in their will. If personal documents (eg, letters) are executed simultaneously with the will (including to explain the testator's wishes or thought process), these should be worded carefully to ensure that they are consistent with the will and not suggestive of a contrary intention.
  • Avoid striking out or overwriting text or making interlineations by hand – if any such change is made, the testator's signature or initial should be affixed in the adjacent margin.
  • Medical evidence – where the testator is old or ill (whether physically or cognitively), a medical certificate should be attached to the will or a doctor should witness the testator's signature. The doctor should preferably be a family doctor or someone with whom the testator is well acquainted. This will help to demonstrate that, in the opinion of a medical expert, the testator was of sound mind at the time of making the will.
  • Destroy earlier wills – the existence of two wills, although not contemporaneous in time, may lead to confusion as to which is valid. Hence, it is important to destroy an earlier will once a new one is executed.
  • Video the entire execution and attestation process – the video recording should capture:
    • the testator reading out the entire will;
    • the testator executing the will in the presence of the witnesses;
    • the witnesses signing the will; and
    • the testator destroying any earlier will.

If the testator cannot read the will, it should be read out to them and explained. The evidentiary value of the recording will be greater if it is clear, visible and audible, there is no distortion or unnecessary editing and the date and time are embedded. The original recording should be kept in a sealed envelope along with the will.

  • Register the will – although not mandatory, registration is often seen as an important step to support a will's genuineness and the timing of its execution. That said, registration by itself does not dispel all suspicion attached to a will, and non-registration does not lead to a presumption that a will is not genuine. Registration is good practice, but by no means conclusive as to validity. If an earlier will is registered, any subsequent will should also be registered, although this is not legally a necessity.

These safeguards should also be implemented when amending a will through a codicil.

Comment

Implementing adequate safeguards when preparing a will should reduce the risk of a challenge being upheld and help to give effect to the testator's wishes. However, these are not formalities mandated by law to constitute a valid will or codicil, but rather precautions which the courts have regarded as helpful in supporting the validity of a will.

The courts will undoubtedly appreciate such safeguards being taken, as they might help – in the words of a famous English judge – to considerably diminish the "ghosts of dissatisfied testators [who] wait on the other bank of the Styx to receive the judicial personages who have misconstrued their Wills".