class notes: 20.02.2017

TESTAMENTRY CAPACITY; CAPACITY TO SIGN AS A WITNESS

INTRO

Should a person at a certain stage in his life decide to dispose of and divide his assets after his death, he has to make his wishes known in a document compiled or written in a certain prescribed way. This document is known as a Will.

The Wills Act 7 of 1953 regulates the formalities of drawing up a will and also who may make a will, who may sign a will as a witness, which formalities have to be met or complied with in executing a valid will or in amending an existing Will.

•Wills Act came into operation 1 January 1954

•Before that various provinces had different laws and ordinances regulating the execution of  wills.

TESTAMENTARY CAPACITY

The testator must have the necessary testamentary capacity at the time of making(executing) the will. Should this capacity be absent then the will is invalid ab initio.

The fact that the testator had the formal capacity to make a will does not guarantee the validity of the will. Any impairment to the free expression of the testators wishes at the time the will is made may also result in the will being invalid. Factors that may play a role are such as:

•Undue influence

•Duress and mistake (error)

Must be dealt within the context of testamentary capacity.

FORMAL TESTAMENTRY CAPACITY

REQUIREMENTS

S4 of the wills Act reads: “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 the effect of his act, and the burden of proof that he was mentally incapable at the time shall rest on the person alleging the same”

Under common law a minor under the age of puberty (12yrs girls and 14 boys) could not make a will. Minors above these ages could make a will without parental or guardian assistance.

In the wills act the age limit has been moved to 16yrs and no distinction made between the sexes.

Please note persons below the age of 16 are disabled from making a will, and this incapacity can not be supplemented by the assistance of the parent or guardian.

A minor at 16yrs making a will can do so without the assistance of the parent.

ü now apart from the age, he must also be mentally capable of understanding the nature and effect of his act at the time of making the will.

Meaning and the cause of mental incapacity

Most obvious examples are:

üMental illness (footnote 20)

üDrunkenness(footnote 21)

üIncapacity due to effects of drugs

the question is always whether the person in mentally incapable of understanding the nature and the effect of his act as a consequence of the disturbance or impairment.

Please note principle on the case of : Essop v Mustapha and Essop 1988 (4) SA 213 (D) pg 41

The courts have identified the following factors that need to be considered when determining if a testator had testamentary capacity at the time of executing a will:

1.General mental and physical

2.General intelligence, memory and capacity to understand the legal implication of their acts.

3.General conduct.

•Spies v Smith

•Kirsten v Bailey

•Kartz v Kartz

FACTORS INFLUENCING FREE TESTAMENTRY EXPRESSION

•Undue influence:  as per Spies v Smith the Appellate Division took the opportunity to give this concept its meaning in the testamentary context. In this case the question arose as to whether a person who was “mentally retarded was unduly influenced by his uncle, who was his curator bonis, in making a will in which the uncle’s children benefited…. The court illustrated on page 44 as to what constituted undue influence…

From what the court had to say, it is clear that the will does not contain the wishes of the testator but those of someone else.

In order to establish whether there has in fact been undue influence, the circumstances of each case need to be considered.

üMental state of the testator

üHis ability to resist being influenced

üRelationship between testator and person exercising the alleged influence

üPeriod between the execution of the will and the death of the testator.

These are all factors that the court takes into account.

DURESS

A will can also be declared invalid if it was made under duress or coercion, as in the case of undue influence. It is not the wishes of the testator that such a will contains but that of another person. Here also the burden of proof rests with the person who alleges that the will was made under duress.

Please read from p.g 46-49. THIS IS ON mistake, delegation of power…

CAPACITY TO SIGN AS WITNESSES

In terms of S2(1)(a) of the wills act, the testator must sign a will in the presence of at least 2 competent witnesses who must in turn also sign a will. What this means is the following:-

•The testator must sign in the presence of witnesses or confirm his already made signature in the presence of witness

•The witnesses, by signing attest or confirm the testators signature, not the knowledge of the contents of the will. This means that the witnesses need not to know the contents of the will, but must have seen the testator signing.

•If the witnesses sign a will before the testator signs, that will is invalid (guess why)

•The witnesses may sign anywhere in the last page of the will. In practice a witness will initial every page and then sign last page

to be continued