My mother was misled into signing away her inheritance by her stepmother. Can she contest this?

The long answer

Perhaps the first step should be to contact the Master’s Office where her father’s death would have been reported. As she was a direct blood relative, your mother has the right to access the estate file, which should contain the original will, the list of assets and debts, and any other important documents. She can get certified copies of these documents. 

She should take her ID, birth certificate and any other documents to prove that she is the eldest daughter of her deceased father. The clerk at the Master’s Office would be able to search for the file using her father's details (name, ID number, date of death). She could also use the Master's Deceased Estate Online Registration System to search for the file using her father's details.

In terms of the document that she signed: 

A document signed under misrepresentation, fraud or undue influence can be legally challenged in court. The fact that her stepmother, who was probably acting as the executor and in a position of trust, told your mother that it was a mere "formality", when it actually signed away (“waived” is the legal term) her inheritance, is a strong basis for a legal challenge.

The legal challenge would be based on showing that the waiver did not reflect her free will. In other words, that her consent was not informed and voluntary, because she was actively misled by the stepmother and the two half-siblings into thinking it was a mere formality.  

In South Africa, the general time limit for challenging a will or related estate matters is three years from the date of the deceased's death. But the time limit may be extended from the date that she discovered that she had signed away her inheritance. In other words, the clock on the three-year limit may only start ticking from the date that she discovered that the document she signed years ago was actually a waiver.

So she needs to make a detailed affidavit about how she came to sign the waiver and how and when she discovered that she, as the eldest daughter, had been made the heir to her father’s house. She could lodge a complaint at the Master’s Office with this affidavit.

She would also need legal assistance: the way that a contract that was signed through misrepresentation is undone, is called “recission”. Recission means that all the parties are restored to their pre-signing positions, which would effectively mean that your mother’s right to inheritance would be restored.

This means that she would have to apply to the High Court to have the document she signed – the waiver – declared invalid. This is only possible under very specific circumstances e.g., if the beneficiary was a minor, mentally ill, or the waiver was signed under misrepresentation.  

Your mother could take her affidavit and all her documents to Legal Aid and ask for their assistance. Legal Aid is a means-tested government organisation that must assist people who cannot afford a lawyer. Legal Aid would also be able to recommend other lawyers who could represent your mother in the required field, if that was needed. 

These are their contact details:

• Legal Aid

Email: communications2@legal-aid.co.za

Tel: 0800 110 110 (Monday to Friday from 7am to 7pm) 

Please-call-me: 079 835 7179  

Wishing you the best,
Athalie