The Will is Clear. Why is the Family still Arguing?

National Wills Week 2026 takes place from 14 to 18 September 2026. The initiative encourages South Africans to make valid Wills and provides an opportunity, through participating legal practitioners, to obtain free legal advice and assistance with the drafting of basic Wills.

Making a Will is an important part of planning for the future. A Will allows a person to record how they wish their estate to devolve after their death. Where a person dies without a valid Will, the estate is generally dealt with in accordance with the rules of intestate succession.

But there is another question that deserves attention during National Wills Week:

What happens when the Will is clear, but the family is not in agreement?

A Will can express a person’s wishes. It cannot necessarily prevent disagreement among the people who remain.

Family relationships, expectations, memories and perceptions of fairness can all become part of a dispute concerning an estate.

And when disagreement arises, mediation may provide another way of addressing the conflict.

ESTATE DISPUTES, WILLS AND MEDIATION IN SOUTH AFRICA

National Wills Week encourages South Africans to prepare valid Wills and engage in responsible estate planning.

Yet many disputes concerning deceased estates arise not because a Will is absent, but because beneficiaries, family members or interested parties hold different views regarding its implementation.

Questions concerning fairness, inheritance, family businesses, sentimental assets, executor decisions and long-standing family dynamics can transform estate administration into a family dispute.

Mediation provides a confidential and structured process through which suitable estate-related disputes may be explored and, where appropriate, resolved without prolonged litigation.

This article examines the relationship between Wills, family disputes, Ubuntu and mediation in South Africa.

When Does a Will Become a Family Dispute?

The administration of an estate can involve much more than the distribution of money.

Disagreement may arise about:

• the interpretation or implementation of a Will;
• the family home;
• whether property should be sold or retained;
• a family business or other business interests;
• the administration of particular assets;
• the conduct or decisions of an executor;
• competing expectations among beneficiaries;
• personal possessions with significant sentimental value;
• alleged promises or understandings made during the deceased’s lifetime; or
• whether a particular beneficiary has been treated fairly.

Some of these questions may be legal questions. Others may involve relationships, expectations and deeply held perceptions of what is fair.

Often, they are both.

That is why an estate dispute can become about considerably more than the asset itself.

A Will Records Wishes. It Does Not Control Relationships.

A properly executed Will is an important part of estate planning. It provides a formal record of a person’s wishes and can reduce uncertainty about how an estate should devolve.

It does not, however, guarantee that beneficiaries will agree with those wishes.

Nor can it necessarily resolve every practical or relational question that arises when an estate is administered.

This distinction is important:

A Will records the wishes of the person who made it. Mediation addresses disagreement among the people affected by what happens next.

These are different functions.

Where Can Mediation Fit?

Mediation is a structured dispute-resolution process in which an independent and impartial mediator assists parties to communicate, identify the issues in dispute and explore possible solutions.

The mediator does not decide who is right and does not impose an outcome.

This can be particularly relevant where an estate dispute involves family members who may have to continue dealing with one another after the immediate dispute has been resolved.

Consider a simple example.

Three siblings inherit a family property. One wants to retain it because it has been the family home for decades. Another wants the property sold so that the proceeds can be distributed. The third is concerned primarily with resolving the estate as quickly as possible.

The disagreement may have a legal dimension. But it also involves different interests, expectations and priorities.

A mediated discussion can create a structured opportunity for those interests to be identified and explored.

The parties may be able to develop options that address their respective concerns in a way that litigation does not necessarily provide.

Litigation Is Not Always the First Conversation

When disagreement develops, the instinctive question may be:

“Who is right?”

Mediation introduces another question:

“Is there a way forward that the people involved can agree upon?”

That does not mean that legal rights are unimportant.

Quite the opposite.

Parties may need independent legal advice to understand their rights and obligations before making an informed decision about settlement.

But knowing one’s legal position and resolving a dispute are not necessarily the same thing.

Mediation provides a forum in which parties can consider both.

Can an Estate Dispute Be Mediated Before Going to Court?

Depending on the circumstances, mediation can take place before litigation has commenced.

This can be particularly valuable where the parties recognise that they have a disagreement but remain willing to engage with one another.

Early dispute resolution may give parties an opportunity to address the underlying issues before positions become entrenched and before the costs and pressures associated with litigation increase.

Mediation cannot guarantee settlement, and not every dispute is suitable for mediation.

But where the circumstances are appropriate, it can provide a structured opportunity to explore resolution before the dispute becomes defined entirely by litigation.

What If the Dispute Is Already in Court?

Mediation may also be relevant once a dispute has entered the litigation process, subject to the nature and procedural circumstances of the matter.

Court-annexed mediation provides a formal mechanism within the justice system, while private mediation can be arranged independently by parties.

The availability of mediation does not mean that a party abandons its legal position.

It may simply mean that the parties are willing to explore whether their dispute can be resolved by agreement rather than determined through a contested hearing.

This is consistent with the broader principle underlying modern dispute resolution: litigation is not necessarily the only mechanism available to parties seeking a resolution.

Mediation Does Not Replace Legal Advice

There is an important distinction between mediation and legal advice.

A mediator does not act as the legal adviser for either party and does not determine the parties’ legal rights.

Where an estate dispute involves questions concerning succession, the interpretation or validity of a Will, the administration of an estate or other legal rights, parties should obtain appropriate independent legal advice.

Mediation can operate alongside that advice.

A party can understand its legal position while also considering whether a negotiated resolution may better serve its interests.

Maintaining this distinction is essential to the integrity of the mediation process.

What About the Family Conversation Before the Dispute?

National Wills Week naturally focuses attention on the importance of making a Will.

But estate planning can also prompt a broader question:

What expectations might remain after the Will has to be implemented?

Every family is different, and there is no universal formula for discussing one’s estate.

Nevertheless, it may be useful to think about circumstances that could potentially give rise to disagreement.

For example:

• Is there a family home with particular emotional or historical significance?
• Is there a family business?
• Are there different branches of the family with different expectations?
• Are there assets that a particular family member expects to receive?
• Are there unresolved family tensions?
• Are there arrangements or promises that family members believe were made during the deceased’s lifetime?

These questions do not mean that a person should change their wishes merely to avoid disagreement.

Nor does every family need to discuss the contents of a Will in detail.

The point is simply to recognise that:

Legal certainty and relational certainty are not always the same thing.

Ubuntu: When Dispute Resolution Is Also About Humanity

There is a particularly South African dimension to this conversation.

Our constitutional order places human dignity, equality and freedom at the heart of our democracy. The Constitution’s Preamble speaks of healing the divisions of the past and building a united South Africa based on democratic values, social justice and fundamental human rights.

Alongside these constitutional values, South African jurisprudence has developed a rich understanding of Ubuntu.

Ubuntu is not expressly listed among the founding values in section 1 of the Constitution. However, it has been recognised as an important value within South Africa’s constitutional culture and jurisprudence.

In S v Makwanyane,  iconic late Justice Mokgoro associated Ubuntu with humaneness, dignity, respect, compassion and community.

In Dikoko v Mokhatla, erudite Justice Sachs emphasised the relationship between Ubuntu, human dignity and the restoration of harmonious human relationships, highlighting the importance of approaches that promote reconciliation and constructive engagement where relationships have been damaged.

These principles are particularly relevant when considering family disputes and estate conflicts, where parties may need to continue living with the consequences of a dispute long after the legal issues have been resolved.

This is significant when we think about family disputes.

An estate dispute may begin with a disagreement about property, money or legal rights.

But behind the legal dispute are people.

There may be grief.

There may be memories.

There may be years of family history.

There may be feelings of exclusion, hurt or unfairness.

There may also be relationships that the parties will need to live with long after the legal dispute has ended.

Ubuntu does not require a person to surrender a legal right or accept an outcome that is unjust.

Rather, its emphasis on human dignity, interdependence, respect and humanity provides a different lens through which conflict can be approached.

And this is where mediation and Ubuntu intersect.

From Winning a Dispute to Finding a Way Forward

Mediation does not ask parties to abandon their rights.

It asks whether, within the framework of their rights and interests, there may be a way forward that they can agree upon.

That distinction matters.

A court may ultimately have to determine a legal dispute.

Mediation creates space for the parties themselves to explore whether there is a resolution that recognises not only the legal issues, but also the human relationships affected by them.

This does not mean that mediation will always save a relationship.

It does not mean that every family dispute can be reconciled.

And it certainly does not mean that Ubuntu should be used to pressure a person into giving up a legitimate claim.

Rather, it suggests that how we resolve conflict can matter as much as the fact that we resolve it.

In this sense, mediation reflects an important dimension of the South African constitutional project: moving away from purely adversarial approaches where appropriate and creating space for dignity, dialogue, participation, fairness and constructive resolution.

From Dispute Resolution to Dispute Prevention

Mediation is often described as a way of resolving disputes.

It can also form part of a broader approach to early dispute resolution.

The earlier a disagreement can be identified and addressed, the greater the possibility that parties can engage with the actual issues rather than becoming increasingly focused on positions, accusations and historical grievances.

This does not mean that every dispute can be prevented.

Nor does it mean that every dispute should be mediated.

It means recognising that conflict can sometimes be approached differently before it becomes entrenched.

For families dealing with an estate, that distinction can matter.

When Should Parties Consider Mediation?

Parties involved in estate disputes may wish to consider mediation where:

• communication between beneficiaries has broken down;
• there is disagreement regarding the implementation of a Will;
• executor decisions are being challenged;
• family members wish to preserve relationships;
• litigation costs threaten to diminish the value of the estate;
• a family business forms part of the estate; or
• the dispute involves both legal and personal considerations.

Mediation does not replace legal rights or legal remedies.

Rather, it provides an opportunity for parties to explore whether a mutually acceptable resolution can be achieved before positions become further entrenched.

The Will, the Family and Ubuntu

National Wills Week reminds us of the importance of recording our wishes in a valid legal document.

Mediation reminds us of something different:

After those wishes have to be implemented, the people involved may still have different perspectives about what should happen.

Ubuntu reminds us of something deeper.

Behind every dispute are people.

People with dignity.

People with relationships.

People with histories.

People whose lives may remain connected after the legal dispute is over.

A Will can provide legal direction.

A constructive conversation can provide understanding.

Mediation can provide a structured process when disagreement has arisen and the parties are willing to explore resolution.

Ubuntu provides a distinctly South African reminder that the human dimension of conflict should not disappear behind the legal one.

None replaces the others.

Each has a different purpose.

The objective is not to suggest that every estate dispute can or should be mediated. Some disputes require judicial determination, and some circumstances are unsuitable for mediation.

But where mediation is appropriate, it can offer parties a confidential and structured opportunity to move from disagreement towards resolution.

This National Wills Week, Think Beyond the Document

Making a Will is an important step in planning for the future.

It may also be worth considering the relationships, expectations and potential areas of disagreement that could remain when that Will eventually has to be implemented.

Perhaps National Wills Week provides an opportunity for a broader conversation about what we leave behind.

Not only what happens to our assets, but also what happens to the people connected to them.

Because sometimes the most difficult part of an estate is not deciding what the Will says.

It is helping the people left behind find a way forward.

And perhaps that is one place where the spirit of Ubuntu and the practice of mediation meet: in recognising that resolving conflict is not only about determining what is owed, but about how human beings can continue to live with one another with dignity, respect and humanity.