Study Unit 4: Testamentary Capacity and Related Matters

Question 1

What is an absolute requirement for the validity of a will?

Answer 1

Formal testamentary capacity (the testament factio activa) on the part of a testator

• Will made by a testator who lacked TC at the time of the will’s execution is invalid from the outset.
• Absence/presence of testamentary capacity on the part of a testator is a factual question.

Question 2

What are the 3 necessary aspects required for formal testamentary capacity?

Answer 2

S 4 of the wills act 7 of 1953

• Testator must be 16/older at time of execution
• Testator must be mentally capable what the nature and effect of what making a will is.
• Allegation of mental incapacity of appreciating nature and effect, burden of proof rests upon person making the allegation.

Question 3

Tregea v Godart 1939

Answer 3

To possess formal testamentary capacity, a testator must have a ‘disposing mind and memory’
- requires that a Testator must be of sufficiently sound mind to understand the essence of what will-making entail by being capable of recollecting:

• The property subject to a testamentary bequest (i.e.,what they can bequeath)
• The manner of distributing such property
• To whom the property is distributed to

Question 4

Katz v Katz 2004

Answer 4

Elaboration on the requirements established in Tregea v Godart:

• Testator must appreciate the nature of the act of making a will, namely that they are disposing of property to named beneficiaries after their death and the nomination of an executor to oversee the distribution process.
• Testator must be able to distinguish between potential beneficiaries and to make a rational and reasoned decision as to their respective claims on their assets.
• A testator must appreciate in broad terms the nature, extent and value of their estate.

Question 5

Essop v Mustapha and Essop 1998

Answer 5

The moment for establishing a testator’s capacity to make a will is the moment of the will’s execution (in other words, the moment of compliance with the formalities for the making of a valid will)
- not the time when the testator gave instructions for the making of a will.

• A testators mental condition at the time of issuing instructions for the making of a will is not wholly irrelevant and can inform a court’s view on the testator’s mental capacity when a court has to determine whether the testator indeed possessed formal testamentary capacity.
• The mere fact that a testator was of advanced age/suffered from serious illnedd at the time of executing a will, does not automatically mean that they lacked capacity to make a will.

Question 6

What are the occasions when Testator’s freedom of expression of testation can be impaired?

Answer 6

Undue influence

Coercion (duress/metus)

Material mistake (error)

Question 7

What does undue influence pertain to?

Answer 7

When a testator is influenced by another to the extent that the will made doesn’t reflect that Testators wishes.
- burden of proving undue influence rests on person who alleges that undue influence occurred.

Question 8

Spies v Smith 1957

Answer 8

Authentic wishes of a testator were displaced with the volition of someone else.

Question 9

Factors to consider when assessing if freedom of testation has been impaired

Answer 9

• mental state of Testator
• Testator’s ability to resist being influenced
• relationship btw Testator and alleged influencer,
• time period btw execution of will and testator’s death (will made on death bed somewhat more suspicious)
• Flattery, expressions of extraordinary love/respect, subservience followed by direct request for benefit or well-founded allegations vs proposed beneficiaries, amongst others, are unlikely to amount to undue influence

Question 10

What does coercion pertain to?

Answer 10

When will reflects wishes of a party who has coerced testator,
- threat can be physical harm to T themselves or loved ones
- burden of proving coercion rests on person who alleges it has occurred.

Question 11

What does mistake pertain to?

Answer 11

e.g., when testator signs will under impression it’s a contract
- Testator clearly lacks intention to make a will (animus testandi) bc they intended to conclude a contract.
– No valid will created.

** The mistake that voids a will must be of a material nature insofar as it negates animus testandi on the testator’s part.
- Consequently, mistaken motive on testator’s part usually doesn’t render will invalid.