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Law of Succession

Capacity to sign as a witness

Chapter 3: Testamentary capacity;


The Wills Act 7 of 1953 regulates the formalities of drawing up a will and
stipulates who may make a will, who may sign a will as a witness, which
formalities have to be complied with in executing a valid will or in amending
an existing will, and in what circumstances certain persons are disqualified
from taking benefits under a will

Testamentary Capacity

In order to make (execute) a valid will, the testator must have the necessary
testamentary capacity at the time of making the will
If this capacity is absent in any particular instance then the supposed will is
invalid ab initio
Factors that can play a role in the validity of a will are factors such as undue
influence, duress and mistake (error)

Burden of proof

Section 4:
Person bearing incapacity bears onus of proof
Question: What about certified mental incapacity? + (Lucidum
Change of onus? Or
Section 4?
Onus does not change
Geldenhuys v Borman
Harlow v Becker
Test: Is the testator able to carry out an effective testamentary act
Can he identify assets to be disposed of after his death (nature)
Determine distribution of assets (effect)
Identify heirs (Tragea v Goddart) (effect)

Factors influencing testamentary capacity


Undue influence relationship

Duress Act/Threat
Mistake Thought


Law of Succession
Capacity to sign as a witness

Chapter 3: Testamentary capacity;

Ask: Was there a displacement of volition (own will), if yes: will is

invalid, if no: the will is valid
i.e. Does the will contain the wishes of the testator or someone else
(Spies v Spies)

Spies v Spies

Testator was mentally retarded

Uncle was curator bonis
Testator made will benefiting uncles children
2 Grounds:
1. Was testator mentally capable to execute will?
2. Was testator unduly influenced by uncle?
Even though mentally retarded, he could appreciate nature and effect
of act
Flatter, professions of love followed by direct request is not necessarily
undue influence
Test remains: Was there a disposition of violation?
Testators state of mind
Ability to withstand influence
Relationship between testator and person attempting to influence
Time period between execution of will and death

Delegation of Testamentary power

General Rule:

Testator must exercise testamentary power himself

May not delegate it to someone else to it on his behalf


Bequest for charitable purposes

Power of appointment

Bequest for charitable purposes (ad pias causa or educational)


I bequeath my entire estate in trust to my trustees, to be used as bursaries to

benefit students at TUKS
The trustee has power to appoint specific beneficiaries
Within the parameters of the trust

Law of Succession
Capacity to sign as a witness

Chapter 3: Testamentary capacity;

Power of appointment

I bequeath the residue in trust to my trustees, with the wildest discretion, to

be used for the benefit of all or some of my children
The trustee has power to appoint specific income or capital
From a selected class/group
Under Roman Law, power of appointment only by way of fideicommissum
Testator appointed Fiduciery, who had power to appoint fideicommissaries
(this also applied to usufruct)
But: Braun v Blann and Botha also extended to power of appointment
granted to trustee

Braun v Blann and Botha


Testatrix created a testamentary trust

Bequeathed residue of estate to testamentary trust
Administrators had wildest discretion to appoint income or capital
beneficiaries from children
Administrators had further power to create a new trust (and appoint trustees
and beneficiaries) for the benefit of grandchildren/great grandchildren
Testamentary trust and power of appointment in respect of children is
Testamentary trust and power of appointment in respect of
grandchildren amounts to delegation of testamentary power

Exercising a power of appointment


Intention to exercise power of appointment

In accordance with provisions of will
Ferreira v Smit
Appointment must be exercised in its entirety

Ferreira v Smit

Immovable property fideicommissum

Grandson = fiduciary and lawful descendants = fideicommissary heirs
Adopted children
Exceeded his power of appointment

Law of Succession
Capacity to sign as a witness

Chapter 3: Testamentary capacity;

Invalid power of appointment


Testators intention (in will)

If no intention:
Nature of bequest
Legal position of grantee

Legal position of grantee where power of appointment = invalid


Fideicommissum Fiduciery will receive asset

Usufruct asset to estate upon termination of interestintestate
Trust asset to estate-intestate

Capacity to sign as witness

Competent witness

Wills Act 7 of 1953

Law of Succession Amendment Act 43 of 1992
All wills executed on or after 1 January 1954
1. Person
2. Document
3. Testamenti factio relative

Section 1
Older than 14
Not incompetent to give evidence in court
Section 2(1)(a)(iii)
Section 4A
2 competent witnesses
In the presence of the testator and each other
Not beneficiary exceptions
The function of the witness attestation is: To attest to the signature of the
testator (identity and free will)

Witness may not receive benefit, unless:

Law of Succession
Capacity to sign as a witness

Chapter 3: Testamentary capacity;

1. The court directs that he is entitled to benefit as there was no undue

influence; OR
2. Witness is entitled to intestate benefit (limited to intestate share) OR
3. There are at least 2 other competent witnesses
Benefit = also executor/trustee etc.