There is an avenue for a person or group of persons to contest the validity of a will once the testator dies, but that person has to have legal standing to do so.

Standing refers to, in law, as a person who is legally allowed to initiate proceedings in court in relation to a matter. For example, an owner of a piece of land, has standing to initiate proceedings against a squatter.

So in the case of a will contest, a person with standing would be a person who is included in the will, that is a beneficiary, or a person who would have been a beneficiary by law if the person died intestate (without a will). Additionally, a person who was a beneficiary under a previous will made by the deceased could also have standing if they are left out of the new will.

Usually, a common ground for contesting a will is if the deceased was known to have some limited mental capacity, like Alzheimer’s disease or dementia and it was unmedicated, or poorly controlled, to the point that it could be argued they were not adequately aware of the consequences of their actions.

Another common claim is that the deceased was coerced or under what is called undue influence and was not truly making the will of their own free will. Additionally, a will can be contested if it lacks the formalities required under Section 6 of the Wills Act. For example, it is signed at the top and not the bottom, if the two attesting witnesses were not present at the same time or if the testator did not sign it at all or if someone signed it on their behalf without their permission or direction.

It is also important that any alterations or additions to the will be properly executed as well, as any new changes to the will could be deemed as a point of contest, especially if it is inconsistent with the first will.

A person seeking to contest the will must initiate an action in the Supreme Court through an ‘application for court orders’, and request that a judge examine the validity of the will. The applicant will have to outline the circumstances that lead them to believe the will is invalid and must mount that challenge in court before a grant of probate is issued, to avoid further complications with wrapping up the estate.

The application will have to be served on the either the executors or the other beneficiaries and they will have to respond with an acknowledgement of service. After both sides have been notified that a challenge is made, the court will set a date to examine the issues and the determination of the court, will therefore decide how to proceed, that is, with the will as is written, removing certain parts or sections or to invalidate the will altogether and proceed with the estate as though it was intestate.

It is important that proper legal advice is sought and quickly, to ensure the assets are not tied up for an inordinate time.