Safeguarding Your Legacy: Crucial Lessons from a Recent Wills Dispute
When it comes to estate planning, we all hope our final wishes will be respected and that our passing will bring our families together, not tear them apart. Unfortunately, the realities of grief, money, and complex family dynamics can sometimes lead to bitter legal battles.
A recent High Court judgment—Lombard v Van Der Merwe and Others (2026)—serves as a stark reminder of what happens when the strict rules of drafting a will are ignored and family members act in bad faith. Here is a breakdown of the case and the vital lessons it offers for anyone planning their estate.
The Background: A Tale of Two Wills
The case centred around the estate of the late Mr Jan Hendrik Lombard, who passed away after a period of severe cognitive and emotional decline at the age of 93.
The court was presented with two conflicting wills:
Will 1 (January 2022): A joint will drawn up by Mr Lombard and his late wife, which accurately reflected their shared intentions.
Will 2 (November 2022): A document executed shortly after his wife's death, naming his daughter as the primary beneficiary and the executrix of his estate.
One of Mr Lombard’s sons approached the High Court to have Will 2 declared null and void, arguing that it was the product of fraud, undue influence, and a failure to follow the law.
The court agreed with the son, entirely invalidating Will 2 and reinstating Will 1. But why did the court make this decision? The ruling rested on three critical legal pillars.
1. The Strict Rules of Signing (Statutory Formalities)
In South Africa, the Wills Act is exceptionally strict about how a will must be signed to prevent fraud. A will must be signed by the testator (the person making the will) in the physical presence of two or more competent witnesses, who must also sign in the presence of each other.
In this case, the person who drafted Will 2 admitted a fatal error: Mr Lombard signed the document in one city (Klerksdorp) in October, while the witnesses signed it weeks later in an entirely different city (Bloemfontein) without Mr Lombard present. Because of this shortcut, the court declared Will 2 invalid from the very beginning.
2. The Intention to Make a Will (Animus Testandi)
For a will to be valid, the testator must have the mental capacity and the clear, unpressured intention to create it. They must understand what they are signing.
The court found that the 93-year-old Mr Lombard was deeply grieving and cognitively vulnerable. Furthermore, the drafter of the will had reportedly pressured him to sign, stating, "This must end now." The court rightly noted that this was the language of pressure, not professional legal assistance. A will must be a free and voluntary act; if it is signed under duress, it is not legally binding.
3. The Unworthy Heir (Indignitas)
Perhaps the most dramatic element of the case involved the legal doctrine known historically as "de bloedige hand neemt geen erf" (the bloodied hand does not inherit). Originally, this rule meant that a person who caused the death of the testator could not inherit from them.
However, modern South African law has expanded this concept. The court highlighted that an heir can be disqualified from inheriting for serious moral wrongs against the testator. In this case, evidence showed that the daughter and another sibling had engaged in a campaign of financial abuse, plundering their elderly parents' bank accounts. She had also provided false evidence to the court.
Because her conduct was so reprehensible, the court declared her legally unworthy to inherit. Instead, her share of the estate was passed down to her lawful descendants. She was also removed as the executrix of the estate and ordered to pay punitive legal costs.
Key Takeaways for Your Own Estate Planning
The Lombard case highlights several vital lessons for the general public:
Do not take shortcuts with signatures: If you are drafting or updating your will, you and your witnesses must be in the same room, watching each other sign the document. A simple logistical shortcut can invalidate your entire legacy.
Protect vulnerable family members: Elderly individuals, especially those who are grieving or suffering from cognitive decline, are highly vulnerable to undue influence. Major changes to a will during these times should be scrutinised carefully.
Use reputable professionals: The person drafting your will (your fiduciary practitioner) has a duty to ensure strict legal compliance and to protect your true intentions. Never use a drafter who pressures you or cuts corners.
Bad faith has consequences: The law takes the financial abuse of the elderly and the fraudulent manipulation of estates very seriously. Those who try to unlawfully enrich themselves at the expense of a vulnerable parent may find themselves entirely disinherited by the courts.
Taking the time to draft a clear, legally compliant will with the help of a trusted professional is the greatest final gift you can give your family. It ensures your true wishes are honoured and helps protect your loved ones from the trauma of courtroom battles.