In South Africa, to make a Will, you need to have something called 'testamentary capacity.' This means that you have the ability to make a legally valid Will that reflects your last wishes. The Supreme Court case of Van Niekerk v Kruger serves as an example where individuals contested the validity of a Will due to questions about mental capacity, undue influence, and forgery at the time of its creation. The case highlights the importance of testamentary capacity in making a valid Will.

Introduction

Making or creating a Will is an essential part of planning for the future, ensuring that our wishes for our estate are fulfilled after we pass. However, simply having a document that reflects our intentions is not enough to make it legally valid. Section 4 of the Wills Act 7 of 1953 requires that a person has "testamentary capacity" to execute a Will, meaning they must have the ability to understand the nature and effect of the document they are signing. According to South African law, if someone argues that a person was not of sound mind at the time of signing a Will, the burden of proof rests with the accuser. They must apply to the High Court for an order of court to prove their claim. In this blog, we will explore a court case, Van Niekerk v Kruger, that highlights the importance of this legal requirement.

Legal requirements

According to section 4 of the Wills Act of South Africa, one must have "testamentary capacity" to execute a will. This capacity means that a person has the ability to make a legally valid will, reflecting their wishes for their estate after passing.

The law requires the following for a person to have testamentary capacity:

1. they must be at least 16 years old,
2. understand the nature and effect of the Will,
3. be of a sound mind, and
4. if someone argues they were not mentally capable, that person has to prove it through a high court application.

Being elderly or experiencing cognitive difficulties does not automatically disqualify someone from having testamentary capacity. What matters is their ability to understand the nature and effect of the Will they are signing.

Van Niekerk v Kruger

In the Supreme Court case of Van Niekerk v Kruger (2016 ZASCA 55), the questions of mental capacity, undue influence, and forgery were all raised concerning the Will of the testatrix, who had passed away.

The niece of the deceased testatrix sought to prove that a copy of the disputed Will was genuine and should be recognised by the court. This is because as fate had it, the original Will (in dispute) was in the possession of the bank official who assisted the testatrix in executing her Will. The original Will was in the bank official's briefcase, which was stolen from his shopping trolley at a supermarket. Thus, only a copy of the Will was available.

Various experts, including a general medical practitioner, a neurosurgeon, and a psychiatrist had conflicting views on whether the testatrix's medical conditions had resulted in frontal lobe executive mental impairment, which would have rendered her of unsound mind and incapable of executing a valid Will.
The testatrix was already 78 years old at the time of her death and had signed the disputed Will a month before her passing. During her lifetime, the testatrix was known to be a strong-willed woman. She had cared for young children throughout her life. She and her husband had three biological children, an adopted child named M, and another young one, P, under their care. Sadly, the testatrix suffered two strokes in the months prior to the signing of the disputed Will, and her husband committed suicide shortly after her first stroke.

In the months following her husband's death, the testatrix lived with her niece (the applicant in this case). Together, they met with an ABSA broker to draft a Will for the testatrix. However, after her second stroke, the Will remained unsigned. Eventually, an ABSA employee brought the draft Will to the testatrix, who asked for some changes just before signing. The changes were made on the Will, and it was signed by the deceased, and two witnesses. The altered document was presented to the ABSA department to be retyped. However, the testatrix passed away before she could sign the retyped document. According to the bank official, the original amended Will was stolen from the ABSA employee's briefcase, leaving only a copy available. The court had to decide whether the copy was a true representation of the stolen original Will and whether the testatrix had the testamentary capacity to create it.

In this complex and emotionally charged case, the court ultimately ruled that the presented document was not a true copy of the original will and that the testatrix lacked testamentary capacity at the time of creating it.

Conclusion

In conclusion, creating a Will is a vital part of planning for the future, but it is not enough to have a document that reflects our wishes. The law requires a person to have testamentary capacity to execute a legally valid Will. The case of Van Niekerk v Kruger highlights the importance of this legal requirement, demonstrating that even a strong-willed person with no prior cognitive difficulties may lack testamentary capacity due to certain medical conditions. 

It is essential to understand what constitutes testamentary capacity and ensure that we meet the legal requirements when creating our Wills. By doing so, we can ensure that our wishes are carried out after we pass, providing peace of mind for ourselves and our loved ones. It is important to seek legal advice to ensure that all legal requirements are met.