In South Africa, anyone who is 16 years or older can create a Will, provided that they are of sound mind and understand the nature and effect of the document they are signing. In this blog post, we will examine two court cases that illustrate the importance of testamentary capacity when making a will, regardless of age.

INTRODUCTION

While there is a minimum age requirement of sixteen years old for making a Will in South Africa, there is no maximum age limit (section 4 of the Wills Act 7 of 1953). Once a person has met the age requirement, they must comply with other formalities such as properly signing the Will with two witnesses. If someone challenges the testator's soundness of mind during the execution of the Will, the burden of proof falls on the accuser to demonstrate such an allegation in an application to the High Court of South Africa.

Two court cases illustrate situations where a Will made by a person of advanced age was contested. In Gildenhuys v Gildenhuys [2010] ZAWCHC 21, the testatrix was in her late 70s when she signed her Will, and in the case of Scott and Others v Master, the testator was 85 years old.

GILDENHUYS V GILDENHUYS

In the case of Gildenhuys v Gildenhuys [2010] ZAWCHC 21, the deceased (testatrix) was 77 years old when she signed the disputed Will. She had never been married nor had any children of her own and spent most of her life on the family farm. The Will in question bequeathed the residue of her estate to a non-family member. Medical evidence presented at the trial revealed that the deceased was suffering from senile dementia, more accurately described as chronic brain syndrome with Alzheimer's disease. Also, the deceased suffered from disorientation regarding place and time and lacked insight and judgment to the extent that she could not make rational decisions. The court also considered the testimonials of close friends of the family. The court held that the deceased was not capable of performing a valid act when she signed her Will, and therefore the Will was deemed invalid.

SCOTT AND OTHERS V MASTER

In the case of Scott and Others v Master of the High Court, Bloemfontein and Others (2582/2012) [2012] ZAFSHC 190 (11 October 2012), the deceased's son, daughter-in-law, and children went to court to challenge the validity of the deceased's Will. At the time the Will was made, the deceased was 85 years old.
The court examined the following facts:

At the time of signing the Will, the deceased's general health was deteriorating. His attitude towards his son, who contested the Will, had changed drastically because he believed his son was more interested in the inheritance than in him. It seems that the son neglected and traumatised the deceased. The uncontested evidence from the deceased's sister revealed that the son pressured the deceased to bequeath almost everything to him and was rude towards the deceased.
The court also considered that the contents of the Will showed that the deceased was aware of the farm workers who had died or left his farm. The deceased amended a certain bequest to the remaining farm workers to provide for their retrenchment benefits. It seems that deceased could logically justify each bequest he made and remembered that he bought his farm and had it registered in his son's name. The son did not dispute this fact. The evidence from his daughter and a retired reverend corroborated this unequivocally. A medical doctor also corroborated this fact.

The court stated that it needed to determine whether the deceased, at the time, had sufficient intelligence, possessed a sound mind and memory, and was able to understand and appreciate the nature of the testamentary act in all its different aspects. There was no medical evidence indicating that the deceased was not of sound mind during the signing of the Will, including the records from the old age home where he was staying. The court ultimately decided to dismiss the son's application, asserting that the signed Will was valid.

CONCLUSION

In these court cases, the court examined various facts, including medical evidence and testimonials from family and friends, to determine if the testator had a clear mind and understood the nature and effect of the Will when they signed it.

In the case of Gildenhuys v Gildenhuys [2010] ZAWCHC 21, the testatrix was 77 years old when she signed her Will, which included the bequest of her farm to a non-family member. However, medical evidence presented at the trial showed that she was suffering from senile dementia and lacked insight and judgment to make rational decisions. Testimonials from close friends of the family also suggested that she was not capable of making a valid will. The court ultimately held that the testatrix lacked testamentary capacity when she signed her Will and thus, the document was deemed invalid.

In the case of Scott and Others v Master of the High Court, Bloemfontein and Others (2582/2012) [2012] ZAFSHC 190 (11 October 2012), the testator was 85 years old when he created his Will. His son and family members contested the validity of the Will, but the court found that there was no medical evidence indicating that the testator was not of sound mind during the signing of the document. The court ultimately dismissed the application, asserting that the signed Will was valid.

These two court cases illustrate the importance of ensuring that one has testamentary capacity when creating a Will, regardless of age, to ensure that one's wishes are carried out after passing.