The concept of freedom of testation will be examined and whether or not it can be expressed by anyone other than the testator. You will also study the formalities for the execution of a will as provided for in section 2 (1) of the Wills Act 7 of 1953, what are the consequences and possible remedies...
Must a testator have testamentary capacity to make a will for the Will to be valid?
Yes. To make (execute) a valid will, the testator must have the necessary testamentary
capacity at the time of making (executing) the will.
What is the effect on the Will if a testator does not have the testamentary required capacity
to make a will?
If this capacity is absent in any instance, then the supposed will is invalid ab initio.
What sources of law governs aspects of testamentary capacity?
Legislation in the form of the Wills Act governs the formal capacity of a testator to make a
will.
LO2: Identify the requirements for testamentary capacity;
LO3: Discuss the requirements for testamentary capacity;
3.2 TESTAMENTARY CAPACITY
3.2.2 Formal testamentary capacity
3.2.2.1 Requirements for formal testamentary capacity
Section 4 of the Wills Act, which governs testamentary capacity, reads as follows:
- Every person of the age of sixteen years or more may make a will unless at the time
of making the will he is mentally incapable of appreciating the nature and effect of his
act, and the burden of proof that he was mentally incapable at that time shall rest on
the person alleging the same.
Under the common law a minor under the age of puberty (12 years for girls and 14 year for
boys) could not make a valid will. Minors above these ages could make a will without the
assistance of a parent or guardian.
In the Wills Act the age limit has been moved up to 16 years and there is no distinction made
between the sexes. Persons below the age of 16 are absolutely disabled from making a will
and this incapacity cannot be supplemented by the assistance of a parent or guardian.
Ratification of such a will at a later stage is equally impossible. A minor who has reached the
age specified in the Wills Act may make a will without any assistance.
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,Apart from the requirement that the testator must have reached the specified age, he or she
must also be mentally capable of understanding the nature and effect of his or her act at the
time of making the will.
The onus of proof to show mental incapacity rests with the person who makes the allegation.
It is generally accepted that with the test for testamentary capacity the legislator has
confirmed the test that applied under the common law.
Yet at the same time it is clear that people such as deaf-mutes and declared prodigals,
whose testamentary capacity was limited in terms of the common law, may in fact make a
will in terms of the Wills Act if they process the required mental capacity.
3.2.2.2 Meaning and causes of 'mental incapacity'
Name some causes of mental incapacity
Examples of causes include:
(a) mental illness.
(b) the consumption of alcohol (or other drugs); and
(c) advanced age, illness, or the consumption of medication (or a combination of these).
(a) Mental illness
Mental illness can naturally have a variety of causes, focuses on cases that have their cause
in one or other mental disturbance or mental disease.
How do we determine whether a person is mentally ill to such an extent that he or she is
mentally incapable of making a will?
The facts of the case will be decisive.
So, whether a person is so mentally ill to the extent that he or she is mentally incapable of
making a will is a question that has to be dealt with in terms of the facts of each case.
What is the leading case dealing with mental illness? Discuss it.
The leading case is Spies v Smith
- In the case it is addressed the testamentary capacity of a 23-year-old man who had
been placed under curatorship as far as his assets were concerned
- According to the courts explanation of the facts the testator was a person who was
‘mentally handicapped’ and who had suffered from epilepsy from an early age
- Argued in the case that a will made by this person was invalid because, among other
reasons, he did not have that mental capacity to make a will
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,In order the answer the question about the testator's testamentary capacity the Appellate
Division referred to the following factors:
(i) whether the testator understood the nature of the testamentary act;
(ii) whether the testator was able to distinguish between his possible heirs; and
(iii) whether the testator was able to understand the nature, extent, and value of his assets.
- In the case reliance was placed only on the third factor, the contention that the
testator was not able to understand the nature, extent, and value of his assets
- Court analyzed the available evidence and concluded that this contention had not
been proved
- Sometimes contended in the context of mental illness that a testamentary act was
invalid as the testator suffered from a so called ‘insane delusion’
- Insane delusion presupposes ‘a persistent and incorrigible belief of things as real
which exist only in imagination of the patient and which no rational person can
conceive that the patient when sane would have believed
- Such delusion will disqualify a person from making a will if it influences the contents
of the will
Does a person who suffers an 'insane delusion’ have the necessary testamentary capacity to
execute and valid Will?
No. An insane delusion:
1. presupposes 'a persistent and incorrigible belief of things as real which exist only in
the imagination of the patient and
2. which no rational person can conceive that the patient when sane would have
believed'.
SO: Such a delusion will disqualify a person from making a will if it influences the contents of
the will.
(b) The consumption of alcohol (or other drugs)
Does the fact that the Will was executed under the influence of the consumption of alcohol
(or other drugs) automatically mean that the testator lacked testamentary capacity? Refer to
Case law to support your answer.
No. The mere fact that a person consumes alcohol (or any other drug) will not necessarily
result in the person lacking testamentary capacity.
That person's testamentary capacity in such situations will depend on the effect that the
consumption of alcohol (or other drug) had on him or her.
3
, Thirion v Die Meester:
- There were allegations that during the period that the will was made the testator
‘drank heavily’
- Absence of specific evidence that could indicate that effect of the alleged alcohol
consumption on the testator during the testamentary act
- However, the court was not prepared to find that for this reason the testator did not
have the necessary capacity to make a will
- Court stated ‘in any event, the consumption of alcohol cannot in itself invalidate
juristic acts such as making a will’
Could the same ‘factors’ identified in Spies v Smith in the context of mental illness also be
applied to test for testamentary capacity in the context of the consumption of alcohol or
drugs?
If you answer in the affirmative list, the factors that you refer to.
Yes. It is suggested that the same factors identified in Spies v Smith in the context of mental
illness can also be applied to test for testamentary capacity in the context of the
consumption of alcohol or drugs.
The Appellate Division in Spies v Smith referred to the following factors:
(i) whether the testator understood the nature of the testamentary act.
(ii) whether the testator was able to distinguish between his possible heirs; and
(iii) whether the testator was able to understand the nature, extent, and value of his assets.
(c) Advanced age, illness, or the consumption of medicine
How does one establish if despite of advanced age, illness, or the consumption of medicine
one has the testamentary capacity to execute a valid Will?
If the question arises as to whether a person has the capacity to make a will despite old age,
illness, or the consumption of medicine (or a combination of these things), the point of
departure is precisely the same.
Again: The mere fact that one or more of these aspects are present does not necessarily
mean that a person does not have the capacity to make a will.
What is the correct moment to establish whether the testator had the required testamentary
capacity? Refer to Case law for authority.
The relevant authority is Essop v Mustapha.
- Court confirmed that the decisive moment for establishing the capacity of the testator
is the time when the will was made and not
- Example, the time when the deceased has issued instructions for drawing up the will
- Court points out that the testators state of mind at the time he or she gave the
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