Common Deceased Estate Disputes and How They Get Resolved

Most disputes are one of five things

• The will itself is challenged, on formalities, on capacity, or on undue influence.
• Someone objects to the liquidation and distribution account.
• The executor is not doing the job, or is suspected of favouring themselves.
• A surviving spouse or a dependent child claims maintenance from the estate.
• Assets are being used or removed before the estate is wound up.

Challenging a will

There are three broadly different attacks and they are not interchangeable.

• Formalities. The will does not meet section 2(1)(a) of the Wills Act, for example a page is unsigned or there was only one witness. This is the most objective ground because it is visible on the document, and it is the first thing to check.
• Capacity. The testator did not have the mental capacity to make a will at the time. This needs evidence, usually medical, going to the state of mind at the moment of signing rather than generally.
• Undue influence. The will reflects someone else's will rather than the testator's. This is genuinely hard to prove, and unhappiness with the outcome is not evidence of it.

Raise a challenge with the Master as early as possible, because once the account is passed and the estate is distributed, unwinding it is far harder. Run the document through the checklist first: /tools/deceased-estates/will-validity-checker

Objecting to the account

This is the formal, cheap, statutory route and most beneficiaries do not know it exists. When the liquidation and distribution account lies open for inspection for at least 21 days, anyone with an interest may lodge a written objection with the Master.

1. Inspect the account, at the Master's office or at the magistrate's office where it also lies.
2. Lodge a written objection with the Master within the inspection period, setting out precisely what in the account is wrong.
3. The Master gives the executor an opportunity to respond, considers both, and rules.
4. A party dissatisfied with the Master's ruling can take it to the High Court.

An objection must be about the account being wrong, for example an asset omitted, a fee overcharged, a distribution that does not follow the will. It is not a mechanism for saying the will was unfair.

When the executor is the problem

• Start in writing to the executor, asking specific questions with dates. Vague frustration produces vague answers.
• If nothing comes back, write to the Master's office handling the estate, quoting the estate number, and set out what you have asked and when.
• The Master can call on an executor to perform their duties and to account.
• In serious cases, section 54 allows an executor to be removed, by the Master in defined circumstances or by the court.
• Where money has actually been lost through a breach of duty, the executor can be held personally liable, and where a bond of security was furnished, the surety comes into play.

Maintenance claims

A surviving spouse who cannot provide for their own reasonable maintenance has a claim against the estate under the Maintenance of Surviving Spouses Act 27 of 1990. Dependent children have a claim for maintenance as a matter of the ordinary duty of support.

These claims rank with each other and, if both are made and the estate cannot cover both, they are reduced proportionately. They rank ahead of heirs and legatees but behind ordinary creditors. This is the mechanism by which a will that leaves a dependent spouse nothing does not simply leave them destitute.

The practical advice nobody wants to hear

Estate litigation is expensive and slow, and the costs usually come out of the same pot everyone is fighting over. A dispute that takes two years and consumes a fifth of the estate leaves every party worse off than a mediated settlement would have.

Before starting, work out what the disputed amount actually is after costs. Where the difference is real and large, fight it. Where it is a principle, mediation and a redistribution agreement will usually get there faster and cheaper. Heirs of full legal capacity can rearrange what they receive by agreement, and the executor accounts on that basis.

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