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Invalid wills

When arguing a will is invalid, a person contends that the will presented for the grant of probate was not intended by the deceased to be her or his last will and testament.

This may be because:

  • it was not the last will made by the deceased
  • the deceased lacked the mental capacity to make a will
  • the deceased did not understand the will (for example, the testator did not understand English and was asked to sign it)
  • someone else used undue influence or pressure to force the testator to make the will
  • the signature on the will has been forged or there has been some other fraud
  • the will presented to the court had been revoked.

If a disputed will is eventually approved by the court, a grant in solemn form is made.

The court, not the Probate Registry, interprets wills. The executor, or a party interested in the estate, may apply to the court to have it decide what the deceased meant by the will. For example, the deceased may have left something to my grandson George and there may be more than one grandson named George.

The Wills Act 1936 (SA) was amended in 1994 to give the court the power to rectify a will [s 25AA]. If a court believes that a will does not accurately reflect the correct intentions of a deceased person the court may order that the will be rectified to give proper expression to those intentions.

An application for rectification of a will must be made within 6 months after the grant of probate [s 25AA(2)]. If an application is not made within this time the court has only limited power to go behind the actual words used in a will.

The court can only interpret the words in the context in which they appear, according to their usual meaning. No outside evidence may be used in interpreting the will. For example, if the will says bank account, the court cannot accept evidence that the deceased meant building society account. The only exception to this is when the words in the will do not make sense in the circumstances. The words bank account have a clear meaning, unless the deceased had no bank accounts. In these circumstances, the court may refer to evidence that the deceased always, for example, called the building society the 'bank'.

Unless the court is able to exercise its power to rectify a will [Wills Act 1936 (SA) s 25AA] the court will not accept evidence about the direct intention of the deceased. A statement by the deceased to a beneficiary that she or he would be receiving a certain gift would not be used by the court in interpreting the will.

Invalid wills  :  Last Revised: Tue Jan 7th 2020
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