Study Unit 4 Flashcards
Testamentary Capacity & other related matters (27 cards)
What is formal testamentary capacity?
An absolute requirement for the validity of a will
Formal testamentary capacity is also referred to as testamenti factio activa.
What happens to a will made by a testator who lacked testamentary capacity at the time of execution?
It is invalid from the outset.
Is the absence or presence of testamentary capacity a factual question?
Yes.
What age must a testator be at the time of executing a will according to S 4 of the Wills Act 7 of 1953?
16 years of age or older.
What must a testator be mentally capable of appreciating when making a will?
The nature and effect of making a will.
Who bears the burden of proof if someone alleges that a testator was not mentally capable?
The person making such an allegation.
According to Tregea v Godart 1939 AD 16, what is required for a testator to possess formal testamentary capacity?
A ‘disposing mind and memory’.
What must a testator be capable of recollecting to have formal testamentary capacity?
The property subject to a testamentary bequest, the manner of distributing such property, and to whom the property was distributed.
In Katz v Katz [2004], what must a testator appreciate when making a will?
The nature of the act of making a will.
What must a testator be able to distinguish between according to Katz v Katz [2004]?
Potential beneficiaries.
When is the moment for establishing a testator’s capacity to make a will?
The moment of the will’s execution.
Does advanced age or serious illness automatically mean a testator cannot make a will?
No.
What can prevent a testator from expressing testamentary wishes freely and voluntarily?
Factors such as undue influence, coercion, and material mistake.
What is undue influence?
When someone influences a testator to make a will that does not reflect the testator’s wishes.
Who bears the burden of proving undue influence?
The person who alleges that undue influence occurred.
What does undue influence do to a testator’s authentic wishes?
Displaces them with the wishes of someone else.
What factors may indicate the presence of undue influence?
- The mental state of the testator
- The testator’s ability to resist being influenced
- The relationship between the testator and the alleged influencer
- The period between the execution of the will and the testator’s death
What is coercion (metus)?
When a testator makes a will under threat from someone else.
What must be proven to establish coercion?
That the will does not reflect the testator’s wishes but rather those of the party who threatened.
What is a mistake in the context of making a will?
When a testator signs a will under the mistaken impression that it is a contract.
What must a mistake do to invalidate a will?
Negate the animus testandi.
What is required for a will to be valid regarding witnesses?
It must be witnessed by at least two witnesses.
What age must a witness be to validly witness a will according to S 1 of the Wills Act?
At least 14 years of age.
What must a witness be competent to do when witnessing a will?
Give evidence in a court of law.
