A will is only valid and enforceable if it complies with the relevant legal requirements. If you are drafting a will, it is recommended that you seek Legal Advice to ensure that your will is properly executed.

The Legal Requirements

A will is not valid unless it is created by a testator with capacity, who knows and approves of its contents, and it complies with the formal requirements in the Succession Act.

Formal Requirements

A will must comply with the formal requirements in section 6 of the Succession Act. I.e., it must be in writing, be signed by the testator, and two witnesses must have attested to the testator’s signature.

Knowledge & Approval

For a will to be valid, it must be shown that the testator knew and approved the contents of the will. This requires that the testator is aware of the contents of the will and understands the effect of the will.

Testamentary Capacity

A will is only valid if the testator had capacity to make the will. It must be shown that they are of sound mind, memory and understanding. Testamentary capacity is a legal concept, not a medical diagnosis, and it requires that you:

  1. Understand the nature of making a will and the effect of the will.
  2. Understand the extent of the property bequeathed by the will.
  3. Comprehend and appreciate the moral claims owed to persons who could contest the will.

Grounds for Challenging the Validity of a Will

A person who was a beneficiary under a previous will or would inherit under the intestacy rules may challenge a will if it fails to comply with the legal requirements or is a product of fraud or undue influence.

Undue Influence

A will will not be valid if undue influence is shown. Undue influence occurs where the testator’s will has been coerced by another person, and it must be shown that the will was not a product of the testator’s free mind.

Undue influence must be contrasted with legitimate persuasion or appeals by a beneficiary. Persuasion itself is not undue influence. Nor is it undue influence if a testator voluntarily succumbs to improper or immoral influences.


A will is invalid where the testator has been fraudulently induced to execute a will. Examples of fraud may include:

  • False statements made to induce or prevent a gift to a particular person;
  • The suppression of material facts to induce or prevent a gift to a particular person;
  • Failure to advise the testator of the effect of a testamentary act; or
  • Compelling a person to execute a will by threats or force.

Suspicious Circumstances

Suspicious circumstances themselves are not grounds to challenge the validity of the will. However, they may cast doubt on the deceased's capacity or the presumption that they knew and approved of the will's contents. Suspicious circumstances may include:

  • Significant changes to the will particularly changes in favour of a person who was not a beneficiary under the previous will;
  • Where a beneficiary is highly involved in the preparation of the will; or
  • Alcohol or drug addiction, old age, sickness, frailty, mental deterioration, or changes in the testator's behaviour, habits or relationships.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.