Can I challenge my stepfather's will that excludes me from inheriting his house that originally belonged to my mother?

The long answer

If a person leaves a will, they are said to have died testate, and the beneficiaries are those named in the will. If they don’t leave a will, they are said to have died intestate, and the beneficiaries are blood relations in the following order: spouses then descendants. 

Vilakazi Attorneys say that “…it is possible for a person to die partly testate and partly intestate. Where a person makes a will which deals with part of the assets of the estate and fails to indicate what happens to the other assets not included in the will, such assets will devolve in terms of the law of intestate succession.”

An intestate estate includes any part of an estate that does not devolve by virtue of a will.

So, if your mother was married to your stepfather in community of property, which is likely, and she died intestate, then he would have inherited 50% of the house, and you and any other of your mother’s children, should have inherited the remaining 50%.

Now that your stepfather has died testate, and has left the house to his two biological children in his will, it is possible that they should be entitled to share the 50% of the house that their father inherited from your mother, as her spouse, when she died. It is possible that you and any other of your mother’s biological children should still be entitled to the other 50% of the house as she died intestate. So, it may be possible for your stepfather’s deceased estate to be partly testate, as per his will, and partly intestate as it was your mother’s house, and her biological children were entitled to inherit the remaining 50% after your stepfather inherited 50% in terms of his marriage in community of property. 

You should find out if the house was still in your mother’s name when your stepfather died. You should also find out who was issued the Letter of Authority, which gives the person the responsibility to wind up the deceased estate and see that the right heirs benefit. The Master of the High Court is the person who issues the Letter of Authority. 

You can contest your stepfather’s will, but because South African law says that a testator (the person who makes the will) has the freedom to choose the beneficiaries, it is very difficult to contest a will in South Africa.

There are the only four grounds on which a will can be contested. These are:

1. Lack of requisite formalities, which means the necessary signatures and the two witnesses to the signature are not there.
2. Forgery and undue influence. Here it would need to be proved that the testator’s signature was forged or that the testator was put under pressure to sign or was misled in some way.
3. Testamentary capacity, which means that the testator was of sound mind and understood what the will said and wanted to leave his property to the beneficiaries nominated.
4. Public policy – I couldn’t find an example of what was meant by public policy in terms of contesting a will, but thought it might be something like a testator wanting a form of burial that was not allowed by the authorities. 

The person contesting the will has to prove that the will was not valid in terms of one of the above four grounds. 

Contesting a will also has to be done within a reasonable timeframe, generally before the estate has been wound up, and as it is a court process, it would involve lawyers and be expensive.

As there are many unanswered questions, I think the best advice is to seek legal advice. You can ask Legal Aid, which is a means-tested organisation that must assist people who cannot afford a lawyer. Here are their contact details:

• Legal Aid Advice Line (Toll-free): 0800 110 110

• Please-Call-Me number: 079 835 7179

The following organisations may also be able to help you:

• ProBono.org (Pro bono means without charge, if the case is in the public interest.)

Email: info@probono.org.za

Johannesburg: tel: 011 339 6080

Cape Town: tel: 087 806 6070/1/2 

• Black Sash

For free paralegal advice: 

Email: help@blacksash.org.za

Helpline: 072 66 33 739

Wishing you the best,
Athalie