INVALID WILLS – NOT EXPRESSING THE TRUE, FREE AND INDEPENDENT WILL OF THE TESTATOR/TRIX
Did you know that even though, in the execution of a Will, all formalities prescribed by law have, on the face of it, been complied with, e.g. that it must be in writing, that it must have been signed by the Testator / trix in the presence of two witnesses who all three signed on each page of the Will and the like, does not eventuate in a Will which is necessarily valid and enforceable?
A Will must express the true, free and independent wishes of the Testator / trix, without any form of influence or interference.
There is no entitlement to an inheritance – a Testator / trix has the freedom to make any disposition of whatever nature to any person/s or institution/s that he or she wishes to.
Influence or interference may take a variety of forms, whether it comprises direct influence, e.g. “dictating” to him / her what should be recorded in the Will or indirectly, e.g. subtle suggestions.
A Will must express the sole will of the Testator / trix and not that of any other person/s.
In determining whether unlawful influence or interference occurred, the Court will admit evidence from any person with whom the Testator / trix may have communicated concerning the contents of the Will, the circumstances under which it was made and the like. In the event of presentations in evidence of conflicting versions, the acceptance of the preferred version will be determined by the probabilities (whether the version fits in with common undisputed facts or not) and the demeanour of the witnesses.
Factors of influence / interference include, but is not confined to duress, fraud (as to the actual meaning of the terms in the Will by a misrepresentation), undue influence and the like.
The following are examples of facts, circumstances and considerations that the Court will take into account in determining whether the will of a Testator / trix was expressed freely, independently and without influence or interference:-
1. The probabilities that the Testator / trix would, e.g., have preferred certain of his / her family members above others, or unequally;
2. Duress in a form of a threat of eminent evil, for example to life, person, honour or property of the Testator /trix or a member of his or her family, which is unlawful having regards to the legal convictions of the community. The threat need not be one of physical violence;
3. The unlawful influence / interference must have induced the Testator / trix into signing the Will;
4. Whether the Testator / trix’s consent to dispositions in the Will have been obtained by improper means;
5. Words or the demonstration of an attitude designed to pressurize the Testator / trix with a view to inspire him / her to dispose of his / her estate against his / her Will;
6. Irritable, urgent, consistent and repeated overpowering of the Testator / trix’s mind by intimidation (even if it is subtle), harsh words, unlawful requests and claims which drives the Testator / trix to concede what he / she does not wish, in order to escape the clutches of the instigator;
7. Demands and persuasions aimed at not leaving the Testator / trix in peace, with the aim that he / she would eventually concede, to escape the pressure exerted on him / her;
8. Misrepresentations regarding the effect and meaning of the words and phrases recorded in the Will;
The above-mentioned factors must be viewed against the background of:-
1. the state of mind of the Testator / trix;
2. the position of the unlawful instigator vis-à-vis the Testator / trix, e.g. that he / she is a person upon whom the Testator / trix depends for his / her everyday wellbeing and care;
3. the power of mind of the Testator / trix to resist prompting and instigation.